Explanatory Memorandum to COM(2013)95 - Entry/Exit System (EES) to register entry and exit data of third country nationals crossing the external borders of the Member States of the EU - Main contents
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· Grounds for and objectives of the proposal
In its Communication of 13 February 2008 preparing the next steps in border management in the European Union the Commission suggested the establishment of an entry/exit system (EES). Such a system entails essentially the electronic register of the dates and places of entry and exit of each third-country national admitted for a short stay.
This proposal was endorsed in the Stockholm Programme agreed by the European Council in December 2009.
Following the European Council of 23 and 24 June 2011 asking the smart borders package to be pushed forward rapidly, i.e. work on legislative proposals for an entry/exit system (EES) and a Registered Traveller Programme (RTP), the Commission published a Communication on 25 October 2011, on the implementation options for the EES and the RTP.
This proposal is presented together with a proposal to establish a Registered Traveller Programme and a proposal to amend the Community Code on the rules governing checks at external border crossing points and surveillance at the external border (Schengen Borders Code) for the purpose of the functioning of the two new systems. Impact assessments are presented for each system.
· General context
According to the Schengen Borders Code, EU citizens and other persons enjoying the right of free movement under Union law (e.g. family members of EU citizens) crossing the external border shall be subject to a minimum check, both at entry and exit, consisting of the verification of the travel document in order to establish the identity of the person. All other third country nationals however must be subject, at entry, to a thorough check, which implies a check of their purpose of stay, possession of sufficient means of subsistence, as well as a search in the Schengen Information System (SIS) and in national databases.
There are no provisions in the Schengen Borders Code on the recording of travellers' cross border movements. Currently, stamping the travel document is the sole method to indicate the dates of entry and exit which can be used by border guards and immigration authorities to calculate the duration of the stay of a third-country national in the Schengen area, which shall not exceed 90 days within a period of 180 days. Other measures and tools available at border crossing points, such as databases (SIS and the Visa Information System – VIS), the consultation of which is compulsory at entry, but not at exit, are not intended for the purpose of recording border crossings and do not provide for this functionality. The main purpose of the VIS is to permit the verification of the visa application history and, at entry, to verify whether the person presenting the visa at the border is the same person to whom the visa has been issued.
There are currently no electronic means to check if, where and when a third-country national has entered or left the Schengen area. Difficulties in monitoring the authorised stay of third country nationals are also caused by the use and quality of the stamps (e.g. readability, lengthy process of calculating the stay, forgery and counterfeiting).
For these reasons, there is no consistent EU-wide record of entries and exits of travellers to and from the Schengen area and thus no reliable means for Member States to determine if a third-country national has exceeded his/her right to stay. Thirteen Member States run their own national entry/exit systems collecting alphanumeric data of travellers. All 13 Member States give access for border management as well as law enforcement purposes. To the extent that a person lawfully exits the same Member State through which he or she entered, an overstay would be detected by these systems. Beyond that, the possibilities for using such systems to detect overstayers are none, as entry and exit records cannot be matched when persons leave the Schengen area through another Member State than the one from which they entered and in which their entry was recorded.
Reliable data on the number of irregular immigrants currently staying in the EU does not exist either. Conservative estimates of the number of irregular immigrants within the EU vary between 1.9 and 3.8 million. It is generally agreed that a clear majority of irregular immigrants are so-called overstayers, i.e. persons who have entered legally for a short stay, with a valid visa when required, and then remained in the EU when their authorised stay has expired. In terms of apprehensions of irregular immigrants in the EU the total for 2010 (EU 27) was 505 220, which shows in comparison to the above estimate that only a small proportion of overstayers is apprehended.
In case third country nationals destroy their documentation once they have entered the Schengen area it is very important for the authorities to have access to reliable information to establish the identity of such persons.
The legislative financial statement annexed to this proposal is based on the study on the costs of an EES and an RTP carried out by an external contractor.
The objectives of the present proposal for a Regulation of the European Parliament and the Council are:
– to create an EES and establish a legal basis for the development and implementation of the technical system;
– to define the purpose, the functionalities and responsibilities for use of the EES; and
– to confer on the Agency for the operational management of large-scale information systems in the area of freedom, security and justice (the Agency), the development and operational management of the central system.
This Regulation shall constitute the core instrument for the legal framework for the EES. To complement this legal framework, a proposal for amending the Schengen Borders Code as regards the use of the system as part of the border management process, is presented in parallel with this proposal.
The purpose of the EES will be to improve the management of the external border and the fight against irregular migration, by providing a system that will
· Calculate the authorised stay of each traveller; this includes at entry, in case of a traveller having visited the Schengen area frequently, to quickly and precisely calculate how many days there are left of the maximum of 90 days within 180 days; at exit, to verify that the traveller has respected the authorised stay; and within the territory, in relation to carrying out checks on third-country nationals to verify the legality of their stay;
· Assist in the identification of any person who may not, or may no longer, fulfil the conditions for entry to, or stay on the territory of the Member States; this concerns notably persons who are found during checks within the territory not in possession of their travel documents or any other means of identification;
· To support the analysis of the entries and exits of third-country nationals; this includes notably getting a precise picture of travel flows at the external borders and the number of overstayers eg by nationality of travellers.
The expected impact of the system is further assessed and detailed in the impact assessment and can be summarised as follows:
· Providing precise information in a rapid way to border guards during border checks, by replacing the current slow and unreliable system of manual stamping of passports; this will allow for both a better monitoring of the authorised stay as well as more efficient border checks;
· Providing precise information to travellers on the maximum length of their authorised stay;
· Providing precise information on who is overstaying their authorised stay, which will support controls within the territory and to apprehend irregular migrants;
· Support the identification of irregular migrants; by storing biometrics in the EES on all persons not subject to the visa requirement, and taking into account that the biometrics of visa holders are stored in the VIS, Member States' authorities will be able to identify any undocumented irregular migrant found within the territory that crossed the external border legally; this will in turn facilitate the return process;
· The analysis generated by the system will allow for an evidence-based approach to e.g. visa policy, as the EES will provide precise data on whether there is problem with overstayers of a given nationality or not, which would be an important element when deciding whether to impose or lift, as the case may be, the visa obligation on the third country in question;
· By abolishing the manual element of stamping of passports from the border check it becomes possible to provide for fully automated border controls for certain third-country nationals, under the conditions laid down in the proposal for a Registered Traveller Programme presented in parallel with this proposal.
· Existing provisions in the area of the proposal
Regulation of the European Parliament and of the Council (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
Regulation of the European Parliament and of the Council (EC) No 1931/2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention.
Regulation of the European Parliament and of the Council (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation).
Regulation of the European Parliament and of the Council (EC) No 810/2009 establishing a Community Code on Visas.
Regulation of the European Parliament and of the Council (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice.
· Consultation of interested parties
This is described in the accompanying impact assessment.
· Impact assessment
The first impact assessment was carried out in 2008 when preparing the Commission Communication on this subject and the second one was finalised in 2012. The former analysed the policy options and their most likely impacts and concluded that an EES should be established.
Following a consultations and pre-screening process the latter impact assessment analysed key implementation options.
Analysis of the different options and sub-options showed that the preferred solution for an EES should be the following:
The EES will be designed as a centralised system containing both alphanumeric and biometric data. The data retention period would be for ordinary cases six months and in case of overstay five years.
The use of biometrics would be subject to a transitional period of three years to allow for Member States' adapting processes at the border crossing points.
After a period of two years, the EES should be evaluated and, in this context the Commission would evaluate in particular the possible access to the system for law enforcement purposes as well as the retention period, also taking into account the experience of access for such purposes to the VIS. The evaluation would be accompanied, as appropriate, by a Commission proposal to amend the Regulation to define the conditions for such access. Those conditions would need to be strictly defined in order to provide an accurate data protection regime and could be modelled on those foreseen by the VIS legal basis.
The Impact Assessment Board (IAB) reviewed the draft impact assessment and delivered its opinion on 14 March 2012 and (on a revised version) on 8 June 2012. The recommendations for improvement were accommodated in the revised version of the report. In particular, the following changes were made: further information is provided on the consultation of interested parties; the overall logic has been reviewed and streamlined; the problem definition has been further developed and made more detailed, both in relation to the overall problem of irregular migration and in relation to specific implementation problems; the baseline scenario has been extended to better describe how it would evolve without further EU action; the options have been restructured and simplified; the assessment of the options have been refined and done in a more logical manner showing which options are linked and which are not; the explanation of the method used for calculating the costs was expanded; the analysis and description of the preferred option have been revised and linked more directly to data that will become available in the future.
· Summary of the proposed actions
The purpose, functionalities and responsibilities for the EES must be defined. Furthermore, a mandate needs to be given to the Agency for the operational management of large-scale IT systems in the area of freedom, security and justice to develop and operationally manage the system. A detailed explanation of the proposal by article can be found in a separate Commission Staff Working Paper.
· Legal basis
Articles 74 and 77(2)(b) and (d) of the Treaty on the Functioning of the European Union is the legal basis for this Regulation. Article 77(2)(b) and (d) is the appropriate legal basis for further specifying the measures on the crossing of the external borders of the Member States and developing standards and procedures to be followed by Member States in carrying out checks on persons at such borders. Article 74 provides the appropriate legal basis for setting-up and maintaining the EES and for procedures for the exchange of information between Member States, ensuring cooperation between the relevant authorities of the Member States’ as well as between those authorities and the Commission in the areas covered by Title V of the Treaty.
· Subsidiarity principle
Under Article 77(2)(b) of the Treaty on the Functioning of the European Union, the Union has the power to adopt measures relating to the checks on persons and efficient monitoring of the crossing of external borders of the Member States. The current EU provisions on the crossing of the external borders of the Member States need to be modified to take into account that there are currently no reliable means to monitor the travel movements of third-country nationals admitted for a short stay given the complexity and slowness of the current stamping obligation, which is insufficient for allowing Members States' authorities to assess the authorised stay at the border check of the traveller or at checks within the territory and the very limited value of national systems for such purposes in an area without internal border control.
The information on who is on EU territory and who complies with the maximum allowed short stay of 90 days within 180 days, on nationalities and groups (visa exempt/required) of travellers overstaying and to support random checks within the territory to detect irregularly staying persons should be available to increase the efficiency of migration management.
A common regime is needed in order to establish harmonised rules on the records of cross border movements and monitoring of authorised stays for the Schengen area as a whole.
Therefore, the objective of the proposal cannot be sufficiently achieved by the Member States.
· Proportionality principle
Article 5 of the Treaty on the European Union states that action by the Union shall not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this EU action must enable the proposal to achieve its objective and be implemented as effectively as possible. The proposed initiative constitutes a further development of the Schengen acquis in order to ensure that common rules at external borders are applied in the same way in all the Schengen Member States. It creates an instrument providing to the European Union information on how many third country nationals enter and leave the territory of the EU, which is indispensible for sustainable and evidence based policy making in the field of migration and visa. Furthermore, it is proportionate in terms of the right to protection of personal data in that it does not require the collection and storage of more data for a longer period than is absolutely necessary to allow the system to function and meet its objectives. It is also proportionate in terms of costs, taking into account the benefits the system will provide to all Member States in managing the common external border and progressing towards a common EU migration policy.
The proposal therefore complies with the proportionality principle.
· Choice of instrument
Proposed instruments: Regulation.
Other means would not be adequate for the following reason(s):
The present proposal will set up a centralised system through which Member States cooperate with each other, something which requires a common architecture and operating rules. Moreover it will lay down rules on border checks at the external borders which are uniform for all Member States. As a consequence, only a Regulation can be chosen as a legal instrument.
• Fundamental rights
The proposed regulation has an impact on fundamental rights, notably on the protection of personal data (Article 8 of the Charter of Fundamental Rights of the EU), right to liberty and security (Article 6 of the Charter), respect for private and family life (Article 7 of the Charter), right to asylum (Article 18 of the Charter) and protection in the event of removal, expulsion or extradition (Article 19 of the Charter).
The proposal contains safeguards as regards personal data, in particular access thereto, which should be strictly limited only to the purpose of this Regulation and to the therein designated competent authorities. Safeguards as regards personal data also include the right of access to or the right of correction or deletion of data.
The Commission's proposal for the next multi-annual financial framework (MFF) includes a proposal of 4,6 billion EUR for the internal security Fund (ISF) for the period 2014-2020. In the proposal, 1,1 billion EUR is set aside as an indicative amount for the development of an EES and an RTP assuming development costs would start from 2015.
This financial support would cover not only the costs of central components for the entire MFF period (EU level, both development and operational cost) but also the development costs for the national, Member States, components of these two systems, within the resources available. Providing financial support for national development costs would ensure that difficult economic circumstances at national level do not jeopardise or delay the projects. This includes an amount on 146 million EUR for costs at national level related to hosting the IT systems, the space for hosting the end-user equipment, and the space for operators' offices. It also includes an amount of 341 million EUR for costs at national level related to maintenance such as for hardware and software licenses.
Once the new systems would be operational, future operational costs in the Member States could be supported by their national programmes. It is proposed that Member States may use 50% of the allocations under the national programmes to support operating costs of IT systems used for the management of migration flows across the external borders of the Union. These costs may include the cost for the management of VIS, SIS and new systems set up in the period, staff costs, service costs, rental of secure premises etc. Thus, the future instrument would ensure continuity of funding, where appropriate.
This proposal builds upon the Schengen acquis in that it concerns the crossing of external borders. Therefore the following consequences in relation to the various protocols and agreements with associated countries have to be considered:
Denmark: In accordance with Articles 1 and 2 of the Protocol (no 22) on the position of Denmark, annexed to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), Denmark does not take part in the adoption by the Council of measures pursuant to Title V of part Three of the TFEU.
Given that this Regulation builds upon the Schengen acquis, Denmark shall, 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.
United Kingdom and Ireland: In accordance with Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis, the United Kingdom and Ireland do not take part in Regulation (EC) No 562/2006 (Schengen Borders Code). Therefore, the United Kingdom and Ireland are not taking part in the adoption of the this Regulation and are not bound by it or subject to its application.
Iceland and Norway: The procedures laid down in the Association Agreement concluded by the Council and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis are applicable, since the present proposal builds on the Schengen acquis as defined in Annex A of this Agreement.
Switzerland: This Regulation constitutes a development of the provisions of the Schengen acquis, as provided for by the Agreement between the European Union, the European Community and the Swiss Confederation on the latter's association with the implementation, application and development of the Schengen acquis.
Liechtenstein: This Regulation constitutes a development of the provisions of the Schengen acquis, as provided for by 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.
Cyprus, Bulgaria and Romenia: This Regulation establishing the EES replaces the respective obligation to verify the length of the stay and to stamp the passport of third country nationals. These provisions were to be applied by the acceding Member States upon accession to the European Union.