Legal provisions of COM(2021)303 - Communication to the EP concerning the Council's position on amending Regulations for the purpose of reforming the Visa Information System and a Regulation as regards the establishment of the conditions for accessing other EU information systems for VIS purposes

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dossier COM(2021)303 - Communication to the EP concerning the Council's position on amending Regulations for the purpose of reforming the Visa ...
document COM(2021)303
date July  7, 2021


Article 1

Amendments to Regulation (EU) No 603/2013

Regulation (EU) No 603/2013 is amended as follows:

(1)the following Chapter is inserted:

‘CHAPTER VIa

ACCESS BY VISA AUTHORITIES

Article 22a

Access to Eurodac by the competent visa authorities

The competent visa authorities shall have access to Eurodac to consult data in a read-only format for the purpose of manually verifying hits triggered by the automated queries carried out by VIS pursuant to Article 9a of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*1) and examining and deciding on visa applications in accordance with Article 21 of Regulation (EC) No 810/2009 of the European Parliament and of the Council (*2).

Article 22b

Interoperability with VIS

From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council (*3) Eurodac shall be connected to the European search portal established by Article 6 of Regulation (EU) 2019/818 of the European Parliament and of the Council (*4) to enable the automated processing pursuant to Article 9a of Regulation (EC) No 767/2008.

(*1)  Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas, and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60)."

(*2)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1)."

(*3)  Regulation (EU) 2021/1134 of the European Parliament and of the Council of 7 July 2021 amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L 248, 13.7.2021, p. 11)."

(*4)  Regulation (EU) 2019/818 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 police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ L 135, 22.5.2019, p. 85).’;"

(2)the following Article is inserted:

‘Article 28a

Keeping of records or logs for the purposes of interoperability with VIS

When consulting Eurodac as referred to in Article 22a of this Regulation, a record or log of each data processing operation carried out within Eurodac and VIS shall be kept in accordance with Article 28 of this Regulation and Article 34 of Regulation (EC) No 767/2008.’.

Article 2

Amendments to Regulation (EU) 2016/794

Regulation (EU) 2016/794 is amended as follows:

(1)in Article 4(1), the following point is added:

‘(q)provide an opinion following a consultation request referred to in Article 9e(4), Article 9g(4) and Article 22b(14) and (16) of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*5).

(*5)  Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas, and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)Article 21 is amended as follows:

(a)the title is replaced by the following:

‘Access by Eurojust, OLAF and, only for purposes of ETIAS, by the European Border and Coast Guard Agency and, only for purposes of VIS, by the VIS designated authorities to information stored by Europol’;

(b)the following paragraph is inserted:

‘1b.   Europol shall take all appropriate measures to enable the VIS designated authorities, for the purposes of Regulation (EC) No 767/2008, to have indirect access on the basis of a hit/no hit system to data provided for the purposes of point (a) of Article 18(2) of this Regulation, without prejudice to any restrictions indicated by the Member State, Union body, third country or international organisation providing the information in question, in accordance with Article 19(2) of this Regulation.

In the case of a hit, Europol shall initiate the procedure by which the information that generated the hit may be shared, in accordance with the decision of the provider of the information to Europol. Such information may be shared only to the extent that the data generating the hit are necessary for the performance of the VIS designated authorities’ tasks related to VIS.

Paragraphs 2 to 7 of this Article shall apply accordingly.’.

Article 3

Amendments to Regulation (EU) 2018/1862

Regulation (EU) 2018/1862 is amended as follows:

(1)the following article is inserted:

‘Article 18a

Keeping of logs for the purposes of interoperability with VIS

Logs of each data processing operation carried out within SIS and VIS pursuant to Article 50a of this Regulation shall be kept in accordance with Article 18 of this Regulation and Article 34 of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*6).

(*6)  Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)in Article 44(1), the following point is added:

‘(g)manually verifying hits triggered by automated queries from the VIS and assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or public security, in accordance with Articles 9d and 9g or Article 22b, of Regulation (EC) No 767/2008.’;

(3)the following article is inserted:

‘Article 50a

Interoperability with VIS

From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council (*7) the SIS Central System shall be connected to the ESP to enable the automated processing pursuant to in Articles 9a and 22b of Regulation (EC) No 767/2008.

(*7)  Regulation (EU) 2021/1134 of the European Parliament and of the Council of 7 July 2021 amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L 248, 13.7.2021, p. 11).’."

Article 4

Amendments to Regulation (EU) 2019/816

Regulation (EU) 2019/816 is amended as follows:

(1)in Article 1, the following point is added:

‘(d)the conditions under which data in ECRIS-TCN may be used by the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*8) for the purpose of assessing whether an applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security as referred to in point (i) of Article 2(1) and point (a) of Article 2(2) of that Regulation.

(*8)  Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)in Article 2, the following paragraph is added:

‘This Regulation also supports the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.’;

(3)in Article 3, point (6) is replaced by the following:

‘(6)‘competent authorities’ means the central authorities, Eurojust, Europol and the EPPO, and the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008, which are competent to access or query ECRIS-TCN in accordance with this Regulation;’;

(4)Article 5 is amended as follows:

(a)in paragraph 1, the following point is added:

‘(c)a flag indicating, for the purposes of Regulation (EC) No 767/2008, that the third-country national concerned has been convicted of a terrorist offence or any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law, including the code of the convicting Member State.’;

(b)paragraph 1a is replaced by the following:

‘1a.   The CIR shall contain the data referred to in point (b) of paragraph 1 and the following data of point (a) of paragraph 1: surname (family name), first names (given names), date of birth, place of birth (town and country), nationality or nationalities, gender, previous names, if applicable, where available pseudonyms or aliases, where available, the type and number of the person’s travel documents, as well as the name of the issuing authority.

The CIR may contain the data referred to in paragraph 3 as well as, in the cases referred to in point (c) of paragraph 1, the code of the convicting Member State. The remaining ECRIS-TCN data shall be stored in the central system.’;

(c)the following paragraph is added:

‘7.   Where hits are identified following the automated processing referred to in Article 27a of Regulation (EC) No 767/2008, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 of this Article shall be accessible and searchable only by the VIS Central System for the purposes of the verifications pursuant to Article 7a of this Regulation in conjunction with point (e) of Article 9a(4) or point (e) of Article 22b(3) of Regulation (EC) No 767/2008.

Without prejudice to the first subparagraph of this paragraph, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 shall not be visible to any authority other than the central authority of the convicting Member State having created the flagged record.’;

(5)in Article 7, paragraph 7 is replaced by the following:

‘7.   In the event of a hit, the central system or the CIR shall automatically provide the competent authority with information on the Member States holding criminal record information on the third-country national, along with the associated reference numbers referred to in Article 5(1) and any corresponding identity information. Such identity information shall be used only for the purpose of verifying the identity of the third-country national concerned. The result of a search in the central system shall be used only for the purpose of:

(a)making a request pursuant to Article 6 of Framework Decision 2009/315/JHA;

(b)making a request as referred to in Article 17(3) of this Regulation; or

(c)assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.’;

(6)the following Article is inserted:

‘Article 7a

Use of ECRIS-TCN for VIS verifications

1. From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council (*9) ECRIS-TCN shall be connected to the ESP to enable the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 to query ECRIS-TCN and compare the relevant data in the VIS with the relevant ECRIS-TCN data in the CIR flagged pursuant to point (c) of Article 5(1) of this Regulation.

2. For the purpose of performing the tasks pursuant to Regulation (EC) No 767/2008, the VIS designated authorities as referred to in Article 9d and Article 22b(13) of that Regulation shall have the right to access only those ECRIS-TCN data in the CIR to which a flag has been added pursuant to point (c) of Article 5(1) of this Regulation.

(*9)  Regulation (EU) 2021/1134 of the European Parliament and of the Council of 7 July 2021 amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L 248, 13.7.2021, p. 11).’;"

(7)Article 8 is amended as follows:

(a)paragraph 2 is replaced by the following:

‘2.   Upon expiry of the retention period referred to in paragraph 1, the central authority of the convicting Member State shall erase the data record, including any fingerprint data, facial images or flags as referred to in point (c) of Article 5(1), from the central system and the CIR. In cases where the data related to a conviction for a terrorist offence or any other criminal offence as referred to in point (c) of Article 5(1) are erased from the national criminal record, but information on other convictions of the same person is retained, only the flag referred to in point (c) of Article 5(1) shall be removed from the data record. Where possible the erasure shall be done automatically, and in any event no later than one month after the expiry of the retention period.’;

(b)the following paragraph is added:

‘3.   By way of derogation from paragraphs 1 and 2, the flags referred to in point (c) of Article 5(1) shall be erased automatically 25 years after the creation of the flag as regards convictions related to terrorist offences, and 15 years after the creation of the flag as regards convictions related to other criminal offences.’;

(8)in Article 24, paragraph 1 is replaced by the following:

‘1.   The data entered into the central system and the CIR shall be processed only for the purposes of the identification of the Member States holding the criminal records information of third-country nationals, or to support the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security in accordance with Regulation (EC) No 767/2008. The data entered into the CIR shall also be processed in accordance with Regulation (EU) 2019/818 for facilitating and assisting in the correct identification of persons registered in the ECRIS-TCN in accordance with this Regulation.’;

(9)the following Article is inserted:

‘Article 31a

Keeping of logs for the purposes of interoperability with VIS

For the consultations referred to in Article 7a of this Regulation, a log of each ECRIS-TCN data processing operation carried out within the CIR and VIS shall be kept in accordance with Article 34 of Regulation (EC) No 767/2008.’.

Article 5

Amendments to Regulation (EU) 2019/818

Regulation (EU) 2019/818 is amended as follows:

(1)in Article 4, point 20 is replaced by the following:

‘(20)‘designated authorities’ means the Member State designated authorities as defined in point (3a) of Article 4 of Regulation (EC) No 767/2008, point (26) of Article 3(1) of Regulation (EU) 2017/2226 and point (21) of Article 3(1) of Regulation (EU) 2018/1240;’;

(2)in Article 18, the following paragraph is inserted:

‘1a.   For the purposes of Articles 9a and 22b of Regulation (EC) No 767/2008, the CIR shall also store, logically separated from the data referred to in paragraph 1 of this Article, the data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816. The data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816 shall be accessible only in the manner referred to in Article 5(7) of that Regulation.’;

(3)in Article 68, the following paragraph is inserted:

‘1a.   Without prejudice to paragraph 1 of this Article, the ESP shall start operations, for the purposes of the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 only, from the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council (*10).

(*10)  Regulation (EU) 2021/1134 of the European Parliament and of the Council of 7 July 2021 amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L 248, 13.7.2021, p. 11).’."

Article 6

Entry into force

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 of the start of operation of VIS pursuant to Article 11 of Regulation (EU) 2021/1134.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.