What changed between the draft committee report and the plenary report

Removed:Article 7 – paragraph 3: deleted

Added:(14) Third-country nationals whose data are to be recorded in the EES should be informed about their rights and obligations regarding the processing of their data in the form of a template as provided in Article 50(5) of Regulation (EU) 2017/2226. The information to be provided to third-country nationals subject to the EES registration should refer to the progressive start of operations of the EES. Third-country nationals should be informed in the template of their obligation to provide biometric data at border crossing points where it constitutes an entry condition. They should be made aware in the template of the consequences of not providing biometric data. They should be informed in the template that it will not be possible for them to verify the remaining duration of the authorised stay by automated means. National authorities should make all reasonable efforts to provide those third-country nationals with details of the duration of their authorised stay based on the stamps in their travel documents.

Removed:Article 7 – paragraph 4: deleted

Added:(15) To reflect the progressive start of operations of the EES, the Commission should, at least every month, introduce relevant updates on the EES website.

Removed:Article 8 – paragraph 2 – subparagraph 1 – point d: (d) Article 7(2) shall cease to apply 240 calendar days after the date decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226;

Added:(16) The aim of raising awareness among third-country nationals on their specific rights and obligations would be best achieved if Member States customise the implementation of the campaign based on how the EES will operate at their borders at which the EES is operated in accordance with Article 4 of Regulation (EU) 2017/2226. The information materials developed by the Commission, in cooperation with the supervisory authorities and the European Data Protection Supervisor, and with the support of Member States in the context of Article 51 of Regulation (EU) 2017/2226 should therefore be adapted to carry out the information campaign accompanying the progressive start of operations.

Added:(17) During the progressive start of operations of the EES, the web service will not enable third-country nationals to electronically verify the exact duration of their authorised stay.

Added:(18) This Regulation does not affect the obligations of air carriers, sea carriers and international carriers transporting groups overland by coach as set out in Article 26(1) of the Convention implementing the Schengen Agreement and Council Directive 2001/51/EC. In this respect, carriers should verify the stamps affixed in travel documents. To ensure effective communication with carriers about the distinct application of the EES at the border crossing points, ultimately benefiting travellers, it is crucial that Member States are transparent about the deployment of the EES at their border crossing points.

Added:(19) Article 22 of Regulation (EU) 2017/2226 and Article 12a of Regulation (EU) 2016/399 provide for a transitional period and transitional measures referring to the start of operations of the EES. It is necessary to derogate from those Articles to ensure that the transitional period and the transitional measures apply only as of the end of the progressive start of operations. That derogation should cease to apply 5 years and 180 calendar days after the date decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226.

Added:(20) To ensure that national authorities and EU agencies, in the performance of their tasks, avoid taking decisions exclusively based on data registered in the EES, they should take into account that individual files registered in the EES may contain incomplete data sets and should in any case not take decisions adversely affecting individuals exclusively on the basis that a registration of an alleged entry or exit is absent in the EES. That derogation should cease to apply 5 years after the date decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226 to reflect the 5-year retention period for data sets for which the exit record is missing as set out in Article 34(3) of that Regulation.

Added:(21) When ensuring compliance with the provisions in Regulation (EU) 2017/2226 on the amendment of data and advance data erasure, Member States should complete the incomplete data to the extent permitted by the limited availability of the sets of data registered in the EES during the progressive start of operations.

Added:(22) The European Border and Coast Guard Agency should refrain from using data registered in the EES during the progressive start of operations for carrying out risk analyses and vulnerability assessments due to the incompleteness of the data that could lead to misleading risk and vulnerability assessments.

Added:(23) To ensure effective management of the external borders during the progressive start of operations of the EES, at the border crossing points at which the EES is not operated, border checks should be carried out in accordance with Regulation (EU) 2016/399 as applicable [the day before the date from which the EES is to start operations as decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226]. At the border crossing points at which the EES is operated, border checks should be carried out in accordance with Regulation (EU) 2017/2226 and the Schengen Borders Code. However, specific derogations from these Regulations should apply with regards to the verification at the border crossing points at which the EES is operated without biometric functionalities to enable the progressive start of operations. This should happen without prejudice to verifications of visa holders by using fingerprints, in accordance with Regulation (EC) 767/2008.

Added:(24) To enable an effective adjustment of technical and organisational arrangements ▌and to address potential exceptional circumstances of failure of the EES Central System, national systems or communication infrastructure, or excessive waiting times at their borders, during the period of the progressive start of operations of the EES, Member States should have the possibility to suspend the operations of the EES at certain border crossing points, fully or partially. In case of partial suspension, the registration of biometric data in the EES should be suspended. In case of full suspension, no data should be registered in the EES. In both cases, Member States should promptly inform the operators of infrastructure hosting border crossing points and carriers. No later than 6 hours after the start of the suspension, Member States should notify to the Commission and eu-LISA the reason for the full or partial suspension and its expected duration.

Added:(24a) To mitigate additional risks related to the deployment of the EES with biometric functionalities, Member States should have the possibility, in exceptional circumstances leading to traffic of such intensity that the waiting times at borders become excessive, to suspend the registration of biometric data in the EES after the end of the progressive start of operations. Such a suspension should be possible for a limited period of 60 days after the end of the progressive start of operations of the EES.

Added:(25) eu-LISA should publish reports on the statistics on the use of the system, which should serve to evaluate the system’s performance, assess Member States compliance with the eu-LISA high-level roll-out plan and the national roll-out plans, identify areas for improvement, monitor compliance with the progressive start of operations of the EES, and support decision-making relating to the system’s further development and optimisation. Furthermore, eu-LISA should continue its regular reporting to its Management Board, which will in turn oversee the gradual roll-out of EES operations.

Added:(26) The preparatory work related to the roll-out plans should be triggered by the date of the entry into force of this Regulation. Member States which have not yet submitted their declaration of readiness are urged to do so within 30 days after the entry into force of this Regulation. The progressive start of operations should apply from the date decided by the Commission in accordance with Article 66(1) of EES Regulation. As this Regulation provides for temporary derogations, it should cease to apply 180 calendar days after the date decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226. However, the derogatory rules on the application of transitional period and transitional measures, access to EES data, verification by the carriers of stamps affixed in the travel documents and the suspension of the EES should apply for a limited period after the end of the progressive start of operations.

Added:(27) The objective of this Regulation, authorising derogations from Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 to provide for a progressive start of operations of the EES, cannot be sufficiently achieved by Member States but can rather, by reason of the scale and impact of the action, be better achieved at Union level. Therefore, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve those objectives.

Added:(28) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark should, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

Added:(29) This Regulation does not constitute a development of the provisions of the Schengen acquis in which Ireland takes part in accordance with Council Decision 2002/192/EC. Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

Added:(30) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning those states association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC.

Added:(31) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point A of Decision 1999/437/EC, read in conjunction with Article 3 of Council Decision 2008/146/EC.

Added:(32) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU.

Added:(33) As regards Cyprus, the provisions of this Regulation relating to the VIS constitute provisions building upon, or otherwise relating to, the Schengen acquis within the meaning of Article 3(2) of the 2003 Act of Accession. The operation of the EES requires the granting of passive access to the VIS. As the EES is only to be operated by those Member States that fulfil the conditions related to VIS at the start of the operation of the EES, Cyprus will not operate the EES from the start of operations. Cyprus is to be connected to the EES as soon as the conditions of the procedure referred to in Regulation (EU) 2017/2226 are met.

Added:(34) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered its opinion on [xx].

Added:(35) This Regulation establishes strict rules concerning access to the EES, as well as the necessary safeguards for such access. It also sets out the individuals’ rights of access, rectification, completion, erasure and redress, in particular the right to a judicial remedy and the supervision of processing operations by public independent authorities. This Regulation therefore respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to human dignity, the prohibition of slavery and forced labour, the right to liberty and security, respect for private and family life, the protection of personal data, the right to non-discrimination, the rights of the child, the rights of the elderly, the integration of persons with disabilities and the right to an effective remedy and to a fair trial.

Added:(36) This Regulation is without prejudice to the obligations deriving from the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967.

Added:HAVE ADOPTED THIS REGULATION:

Added:This Regulation lays down rules on a progressive start of operations of the Entry/Exit System (EES) at the borders of the Member States at which the EES is operated in accordance with Article 4 of Regulation (EU) 2017/2226 and temporary derogations from Regulation (EU) 2017/2226 and Regulation (EU) 2016/399.

Added:For the purposes of this Regulation, the definitions in Article 3(1) of Regulation (EU) 2017/2226 apply. In addition, the following definitions apply:

Added:(a) ‘progressive start of operations of the EES’ means the period of 180 calendar days starting from the date decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226;

Added:(b) ‘national authorities’ means the authorities referred to in Article 9 of Regulation (EU) 2017/2226;

Added:(c) ‘estimated number of border crossings’ means a Member State’s estimate of the number of border crossings of third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226 in each Member State based on the yearly average of the total number of border crossings of third-country nationals travelling for a short stay in that Member State calculated for the preceding two calendar years from the date of application referred to in Article 8(1), second subparagraph, of this Regulation.

Added:1. By [the 30th calendar day after the entry into force of this Regulation], the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) shall provide the European Parliament, the Commission, Member States, as well as Europol, with a high-level roll-out plan on the progressive start of operations of the EES, taking into account the phases set out in Article 4. That roll-out plan shall support the effective and continuous operation of the EES Central System, include fall-back procedures for the functioning of the EES Central System and provide guidance on the use of the EES to the end-users, including Member States and Europol ▌.

Added:2. By [the 60th calendar day after the entry into force of this Regulation], in consultation with the Commission and eu-LISA, Member States shall develop national roll-out plans on the progressive start of operations of the EES, taking into account the high-level roll-out plan referred to in paragraph 1 of this Article and present those plans to the Commission. Where a Member State does not start operating the EES fully from the beginning of the progressive start of operations of the EES, the national roll-out plan shall specify how the thresholds and requirements set out in Article 4 shall be met. EU-Lisa shall assess whether the national roll-out plans are consistent with the high-level roll-out plan and shall confirm that they do not contain any deficiencies which could further delay the entry into operation of the EES. Member States shall inform relevant stakeholders of the border crossing points where they plan to start operating the EES and of their planned use of the biometric functionalities of the EES.

Added:3. ▌

Added:4. From the 30th calendar day after the date from which the EES is to start operations as decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226, Member States shall provide monthly reports to the European Parliament, the Commission and eu-LISA on the implementation of their national roll-out plans, including corrective measures where necessary to comply with the obligations set out in Article 4.

Added:5. At the request of the Commission, eu-LISA shall provide the Commission with the statistics necessary for the Commission to monitor the implementation of the high-level roll-out plan and the national roll-out plans, in accordance with Article 63(6) of Regulation (EU) 2017/2226.

Added:5a. The eu-Lisa Management Board shall adopt the high-level roll-out plan referred to in paragraph 1. The Management Board shall also monitor the stability of the EES Central System during the progressive start of operations and suggest additional actions where appropriate.

Added:5b. The Commission shall issue guidelines to facilitate the provision of concise national roll-out plans and monthly reports by the Member States.

Added:5c. The Commission, in consultation with the European Data Protection Supervisor, shall issue guidelines on the processing of personal data in the EES during the progressive start of operations.

Added:1. By way of derogation from Article 66(6) of Regulation (EU) 2017/2226 during the progressive start of operations of the EES, the Member States shall use the EES as set out in this Article.

Added:2. From the first day of the progressive start of operations of the EES, each Member State shall start using the EES on entry and exit at one or more border crossing points with, if possible and applicable, a combination of air, land and sea border crossing points, to record and store data of third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226. No later than the 30th calendar day of the progressive start of operations of the EES, Member States shall register in the EES at least 10% of the estimated number of border crossings in that Member State.

Added:For the first 60 calendar days of the progressive start of operations of the EES, Member States may operate the EES without biometric functionalities, and national authorities may create or update individual files without biometric data.

Added:3. No later than the 90th calendar day of the progressive start of operations of the EES, Member States shall operate the EES with biometric functionalities at least at half of their border crossing points. Member States shall register at least 35% of the estimated number of border crossings in that Member State. The individual files of third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226 that are registered in the EES shall contain biometric data.

Added:4. No later than the 150th calendar day of the progressive start of operations of the EES, Member States shall operate the EES with biometric functionalities at all their border crossing points and shall continue registering in the EES at least 50% of the estimated number of border crossings in that Member State.

Added:5. No later than the 170th calendar day of the progressive start of operations of the EES, Member States shall operate the EES with biometric functionalities at all their border crossing points and shall register in the EES all third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226.

Added:6. Refusals of entry, decided at a border crossing point at which the EES is operated, shall be recorded in the EES, as set out in Article 18 of Regulation (EU) 2017/2226. Where the EES is operated with biometric functionalities, refusals of entry shall be recorded with biometric data. Where the EES is operated without biometric functionalities, refusals of entry shall be recorded without biometric data.

Added:7. From the first day of the progressive start of operations of the EES, Europol shall use the EES as provided for in Regulation (EU) 2017/2226.

Added:1. In addition to the rules of Article 4, the rules set out in this Article shall apply to all Member States during the progressive start of operations of the EES.

Added:2. Border authorities shall systematically stamp the travel documents of third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226 on entry and exit.

Added:The stamping obligations referred to in Article 42a(1), second subparagraph, and Article 42a(2), (5) and (6) of Regulation (EU) 2016/399 shall apply mutatis mutandis in the Member States operating the EES.

Added:3. For entering, amending, erasing and consulting the data in the EES, national authorities that are competent for the purposes laid down in Articles 23 to 35 of Regulation (EU) 2017/2226 shall consider stamps as prevailing over the EES data, including in cases of discrepancy or in cases referred to in Article 16(4) of that Regulation. The data recorded in the EES shall prevail in case a stamp is missing.

Added:4. In the absence of a stamp affixed in the travel document and of an individual file created in the EES for a third-country national present in the territory of the Member States, national authorities may presume that the third-country national does not fulfil or no longer fulfils the conditions relating to entry or stay in the Member States.

Added:This presumption shall not apply to third-country nationals who can provide, by any means, credible evidence that they enjoy the right of free movement under Union law, ▌ or that they hold a residence permit or a long-stay visa.

Added:This presumption may be rebutted where the third-country nationals provide, by any means, credible evidence that they have respected the conditions relating to the duration of a short stay.

Added:Where the presumption is rebutted, national authorities shall perform one or more of the following tasks at the border crossing points at which the EES is operated, to the extent allowed by this Regulation:

Added:(a) create an individual file for that third-country national in the EES, if necessary;

Added:(b) update the latest entry/exit record by entering the missing data;

Added:(c) erase an existing file where Article 35 of Regulation (EU) 2017/2226 provides for such erasure.