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

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

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

This Regulation establishes an ‘Entry/Exit System’ (EES) for:

(a) the recording and storage of the date, time and place of entry and exit of third–country nationals crossing the borders of the Member States at which the EES is operated;

(b) the calculation of the duration of the authorised stay of such third-country nationals;

(c) the generation of alerts to Member States when the authorised stay has expired; and

(d) the recording and storage of the date, time and place of refusal of entry of third-country nationals whose entry for a short stay has been refused, as well as the authority of the Member State which refused the entry and the reasons therefor.

Article 2

Scope

This Regulation applies to:

(a) third-country nationals admitted for a short stay to the territory of the Member States who are subject to border checks in accordance with Regulation (EU) 2016/399 when crossing the borders at which the EES is operated; and

(b) third-country nationals, on entry to and exit from the territory of the Member States, who: (i) are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country 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; and (ii) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Council Regulation (EC) No 1030/2002 (²).

This Regulation does not apply to:

(a) third–country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who hold a residence card pursuant to that Directive, whether or not they accompany or join that Union citizen;

(b) third-country nationals who are members of the family of a national of a third country, whether or not they accompany or join that national of a third country, where: (i) that national of a third country enjoys 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; and (ii) those third-country nationals hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;

(c) holders of residence permits referred to in point 16 of Article 2 of Regulation (EU) 2016/399 other than those covered by points (a) and (b) of this paragraph;

(d) third-country nationals exercising their right to mobility in accordance with Directive 2014/66/EU of the European Parliament and of the Council (³) or Directive (EU) 2016/801 of the European Parliament and of the Council (⁴);

(e) holders of long-stay visas;

(f) nationals of Andorra, Monaco and San Marino and  holders of a passport issued by the Vatican City State or the Holy See;

(g) persons or categories of persons exempt from border checks or benefiting from specific rules in relation to border checks as referred to in point (g) of Article 6a(3) of Regulation (EU) 2016/399;

(h) persons or categories of persons referred to in points (h), (i), (j) and (k) of Article 6a(3) of Regulation (EU) 2016/399.

The provisions of this Regulation regarding the calculation of the duration of the authorised stay and the generation of alerts to Member States when the authorised stay has expired do not apply to third-country nationals who:

(a) are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country 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; and

(b) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002.

Article 3

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation (EU) 2016/399;

(2) ‘internal borders’ means internal borders as defined in point 1 of Article 2 of Regulation (EU) 2016/399;

(3) ‘border authority’ means the border guard assigned in accordance with national law to carry out border checks as defined in point 11 of Article 2 of Regulation (EU) 2016/399;

(4) ‘immigration authority’ means the competent authority responsible, in accordance with national law, for one or more of the following: (a) checking within the territory of the Member States whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled; (b) examining the conditions for, and taking decisions related to, the residence of third-country nationals on the territory of the Member States insofar as that authority does not constitute a ‘determining authority’ as defined in point (f) of Article 2 of Directive 2013/32/EU of the European Parliament and of the Council (⁵), and, where relevant, providing advice in accordance with Council Regulation (EC) No 377/2004 (⁶); (c) the return of third-country nationals to a third country of origin or transit;

(5) ‘visa authority’ means the visa authority as defined in point 3 of Article 4 of Regulation (EC) No 767/2008;

(6) ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU, with the exception of persons who enjoy the right of free movement equivalent to that of Union citizens under agreements between the Union and its Member States, on the one hand, and third countries, on the other;

(7) ‘travel document’ means a passport or other equivalent document entitling the holder to cross the external borders and to which a visa may be affixed;

(8) ‘short stay’ means stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period as referred to in Article 6(1) of Regulation (EU) 2016/399;

(9) ‘short-stay visa’ means visa as defined in point (a) of point 2 of Article 2 of Regulation (EC) No 810/2009 of the European Parliament and of the Council (⁷);

(10) ‘national short-stay visa’ means an authorisation issued by a Member State which does not apply the Schengen acquis in full with a view to an intended stay on the territory of that Member State of a duration of no more than 90 days in any 180-day period;

(11) ‘authorised stay’ means the exact number of days during which a third-country national is permitted to legally stay on the territory of the Member States, counting from the date of the entry in accordance with the applicable provisions;

(12) ‘Member State responsible’ means the Member State which has entered data in the EES;

(13) ‘verification’ means the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);

(14) ‘identification’ means the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check);

(15) ‘alphanumeric data’ means data represented by letters, digits, special characters, spaces and punctuation marks;

(16) ‘fingerprint data’ means the data relating to the four fingerprints of the index, middle finger, ring finger and little finger from the right hand where present, and otherwise from the left hand;

(17) ‘facial image’ means digital images of the face;

(18) ‘biometric data’ means fingerprint data and facial image;

(19) ‘overstayer’ means a third-country national who does not fulfil or no longer fulfils the conditions relating to the duration of his or her authorised short stay on the territory of the Member States;

(20) ‘eu-LISA’ means the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011;

(21) ‘supervisory authorities’ means the supervisory authority established in accordance with Article 51(1) of Regulation (EU) 2016/679 and the supervisory authority established in accordance with Article 41(1) of Directive (EU) 2016/680;

(22) ‘EES data’ means all data stored in the EES Central System and in the CIR in accordance with Articles 15 to 20;

(22a) ‘identity data’ means the data referred to in point (a) of Article 16(1) as well as the relevant data referred to in Articles 17(1) and 18(1);

(23) ‘law enforcement’ means the prevention, detection or investigation of terrorist offences or other serious criminal offences;

(24) ‘terrorist offence’ means an offence under national law which corresponds or is equivalent to one of the offences referred to in Directive (EU) 2017/541;

(25) ‘serious criminal offence’ means an offence which corresponds or is equivalent to one of the offences referred to in Article 2(2) of Framework Decision 2002/584/JHA, if it is punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years;

(26) ‘designated authority’ means an authority designated by a Member State pursuant to Article 29 as responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences;

(27) ‘self-service system’ means a self-service system as defined in point 23 of Article 2 of Regulation (EU) 2016/399;

(28) ‘e-gate’ means an e-gate as defined in point 24 of Article 2 of Regulation (EU) 2016/399;

(29) ‘Failure To Enrol Rate’ (FTER) means the proportion of registrations with insufficient quality of the biometric enrolment;

(30) ‘False Positive Identification Rate’ (FPIR) means the proportion of returned matches during a biometric search which do not belong to the checked traveller;

(31) ‘False Negative Identification Rate’ (FNIR) means the proportion of missed matches during a biometric search even though the traveller’s biometric data were registered;

(32) ‘ESP’ means the European search portal established by Article 6(1) of Regulation (EU) 2019/817;

(33) ‘CIR’ means the common identity repository established by Article 17(1) of Regulation (EU) 2019/817.

Article 4

Borders at which the EES is operated and use of the EES at those borders

Article 5

Set-up of the EES

eu-LISA shall develop the EES and ensure its operational management, including the functionalities for processing biometric data as referred to in point (d) of Article 16(1) and points (b) and (c) of Article 17(1), as well as the adequate security of the EES.

Article 6

Objectives of the EES

By recording and storing data in the EES and by providing Member States with access to such data, the objectives of the EES shall be to:

(a) enhance the efficiency of border checks by calculating and monitoring the duration of the authorised stay on the entry and exit of third-country nationals admitted for a short stay;

(b) assist in the identification of third-country nationals who do not or no longer fulfil the conditions for entry to, or for short stay on, the territory of the Member States;

(c) allow the identification and detection of overstayers and enable the competent national authorities of the Member States to take appropriate measures;

(d) allow refusals of entry in the EES to be checked electronically;

(e) enable automation of border checks on third-country nationals;

(f) enable visa authorities to have access to information on the lawful use of previous visas;

(g) inform third-country nationals of the duration of their authorised stay;

(h) gather statistics on the entries and exits, refusals of entry and overstays of third-country nationals in order to improve the assessment of the risk of overstays and support evidence-based Union migration policy making;

(i) combat identity fraud and the misuse of travel documents;

(j) ensure the correct identification of persons;

(k) support the objectives of the European Travel Information and Authorisation System (ETIAS) established by Regulation (EU) 2018/1240 of the European Parliament and of the Council (⁸).

By granting access to designated authorities in accordance with the conditions set out in this Regulation, the objectives of the EES shall be to:

(a) contribute to the prevention, detection and investigation of terrorist offences or of other serious criminal offences;

(b) enable the generation of information for investigations related to terrorist offences or other serious criminal offences, including the identification of perpetrators, suspects and victims of those offences who have crossed the external borders.

The EES shall, where relevant, support Member States in operating their national facilitation programmes established in accordance with Article 8d of Regulation (EU) 2016/399, in order to facilitate border crossing for third-country nationals, by:

(a) enabling the national competent authorities referred to in Article 8d of Regulation (EU) 2016/399 to have access to information on previous short stays or refusals of entry for the purposes of the examination of applications for access to national facilitation programmes and the adoption of decisions referred to in Article 25 of this Regulation;

(b) notifying the border authorities that access is granted to a national facilitation programme.

Article 7

Technical architecture of the EES

The EES shall be composed of:

(a) a Central System (EES Central System);

(aa) the CIR central infrastructure as referred to in point (a) of Article 17(2) of Regulation (EU) 2019/817;

(b) a National Uniform Interface (NUI) in each Member State based on common technical specifications and identical for all Member States, enabling the connection of the EES Central System to the national border infrastructures in Member States in a secure manner;

(c) a Secure Communication Channel between the EES Central System and the VIS Central System;

(d) a Communication Infrastructure, which shall be secure and encrypted, between the EES Central System and the NUIs;

(e) the web service referred to in Article 13;

(f) a secure communication infrastructure between the EES Central System and the central infrastructures of the ESP and the CIR.

Article 8

Interoperability with the VIS

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 in order to create or update the entry/exit record or the refusal of entry record of a visa holder in the EES in accordance with Articles 14, 16 and 18 of this Regulation and Article 18a of Regulation (EC) No 767/2008;

(b) retrieve the visa-related data directly from the VIS and import them into the EES in order to update the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13, 14 and 18a of Regulation (EC) No 767/2008;

(c) verify, pursuant to Article 23 of this Regulation and Article 18(2) of Regulation (EC) No 767/2008, the authenticity and validity of the relevant 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;

(d) verify at the borders at which the EES is operated whether a visa-exempt third-country national has been previously registered in the VIS in accordance with Article 23 of this Regulation and Article 19a of Regulation (EC) No 767/2008; and

(e) where the identity of a visa holder is verified using fingerprints, verify at the borders at which the EES is operated the identity of a visa holder by comparing the fingerprints of the visa holder with the fingerprints recorded in the VIS in accordance with Article 23 of this Regulation and Article 18(6) of Regulation (EC) No 767/2008.

Interoperability shall enable the visa authorities using the VIS to consult the EES from the VIS in order to:

(a) examine visa applications and adopt decisions relating to those applications in accordance with Article 24 of this Regulation and Article 15(4) of Regulation (EC) No 767/2008;

(b) examine, for the Member States which do not yet apply the Schengen acquis in full but operate the EES, applications for national short-stay visas and adopt decisions relating to those applications;

(c) update the visa-related data in the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13 and 14 of Regulation (EC) No 767/2008.

Article 8a

Automated process with ETIAS

Where an entry/exit record or a refusal of entry record of a visa exempt third-country national is created, the automated process referred to in the first subparagraph shall enable the EES Central System:

(a) to query and to import from the ETIAS Central System the information referred to in Article 47(2) of Regulation (EU) 2018/1240, the application number and the expiry date of the ETIAS travel authorisation;

(b) to update the entry/exit record in the EES in accordance with Article 17(2) of this Regulation; and

(c) to update the refusal of entry record in the EES in accordance with point (b) of Article 18(1) of this Regulation.

Article 8b

Interoperability with ETIAS

For the purpose of proceeding with the verifications referred to in points (g) and (h) of Article 20(2) of Regulation (EU) 2018/1240, the ETIAS Central System shall use the ESP to compare the data stored in ETIAS with EES data, in accordance with Article 11(8) of that Regulation, using the data listed in the correspondence table set out in Annex III to this Regulation.

The verifications referred to in points (g) and (h) of Article 20(2) of Regulation (EU) 2018/1240 shall be without prejudice to the specific rules provided for in Article 24(3) of that Regulation.

Article 9

Access to the EES for entering, amending, erasing and consulting data

The EES shall provide the functionality for the centralised management of that list. The detailed rules on managing that functionality shall be laid down in implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

Article 10

General principles

Article 11

Automated calculator and obligation to inform third-country nationals on the remaining authorised stay

The automated calculator shall not apply to third-country nationals: