BAKGRUNN (fra Kommisjonsforslaget)

• Reasons for the proposal

The Entry/Exit System (EES) is a crucial component of the border management of the Schengen area, laid down in Regulation 2017/2226 1 (‘EES Regulation’). As a centralised database, the EES registers entries, exits and refusals of entry of third-country nationals crossing the external borders of 29 Schengen Member States for a short stay. The EES marks a significant milestone in the EU’s efforts to enhance security and efficiency at its external borders. For the first time, a system will collect biometric data, such as facial images and fingerprints of third country nationals crossing the external borders. The EES will grant Schengen Member States real-time access to third-country nationals’ personal data, travel history and information on whether they comply with the authorised short-stay period in the Schengen area. As a result, the EES will significantly reduce the likelihood of identity fraud and overstay, ultimately strengthening the security of the Schengen area.

Despite significant efforts from Member States, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) and the Commission, it is not possible to launch the EES in Q4 2024 as endorsed by the Justice and Home Affairs Council in October 2023 2 . The Commission has not received all notifications from Member States as per Article 66(1)(c) of the EES Regulation, which is a legal requirement for the EES to start operations. While a large number of Member States have notified their readiness to the Commission, certain Member States have indicated that they are not in a position to do so. At the same time, a full start of operations overnight constitutes a risk factor for the resilience of a complex IT system, such as the EES Central System.

In light of the above, stakeholders involved in the operations of the EES have made clear their preference that the introduction of new processes at the external borders should be preceded by a period of adjustment for national authorities and travellers to give a greater degree of certainty. Fully launching a new large-scale IT system at all border crossing points where technical adjustments are required in real-time could pose risks to secure and smooth travel, particularly in areas where the existing infrastructure, a lack of space or other constraints already pose challenges. These challenges are exacerbated by the differences among Member States on the way that the EES is being implemented due to the diversity of border crossing points and different approaches to automation and to deployment of new technologies.

However, the EES Regulation only allows for a full start of operations, requiring all Member States to start using the EES fully and simultaneously for all travellers who are subject to registration in the EES at all their external border crossing points. It does not foresee the option of a period of adjustment.

Considering the above, it appears that the objectives of the EES can be achieved more effectively and with greater certainty if a degree of flexibility is introduced at the start of the system’s operations. To that end, a Regulation enabling a progressive start of operations for a limited period of time is considered necessary. This proposed Regulation derogates from the EES Regulation to the extent necessary to enable a progressive start of operations. This will preserve the efforts made by both eu-LISA and Member States, while meeting the objectives of the EES to modernise the management of the external borders and contribute to the internal security of the European Union.

Moreover, the proposed Regulation offers a flexible approach that accommodates the diverse needs of Member States. It enables those who wish to implement it gradually to do so, while enabling others to start operations fully from day one. It should however be noted that the full benefits of the EES will only be available once all Member States are applying it in full.

This proposal also introduces measures that enable Member States to effectively manage exceptional circumstances, such as technical problems or periods of peak travel. To mitigate such risks, Member States can suspend the use of the system, fully or partially, for a short period of time during the period of the progressive start of operations. This mechanism will also be retained for a limited period after the full start of operations.

In expert and technical level exchanges as well as in the Management Board of eu-LISA, most Member States expressed support for a progressive start of operations and acknowledged that it will allow for a better implementation of the new EES rules at the external borders. The progressive approach has also been welcomed by most carriers and operators of infrastructure hosting border crossing points during a dedicated meeting with these stakeholders. Member States should ensure appropriate coordination with the operators of infrastructure of those border crossing points at which the EES is deployed. Member States should ensure transparency about the deployment of the EES at their external border crossing points and make sure that the measures are effectively communicated to both carriers and travellers.

• Objectives of the proposal

The general objectives of this proposal result from the Treaty-based goals to further improve the management of the external borders of the Schengen area by starting to apply, as soon as possible, the EES harmonised rules on cross border movements and therefore contribute to the internal security of the European Union.

This initiative lays the ground for a progressive start of the EES operations, derogating temporarily from certain provisions of the EES Regulation and Regulation (EU) 2016/399 (‘Schengen Borders Code 3 ’) that require Member States to use the system fully.

The general objective of the proposal is to facilitate the operationalisation of the EES Regulation, thereby enabling Member States to achieve the system’s objectives set out in the EES Regulation in a timely and efficient manner.

The specific objectives of the proposal are to:

1. provide flexibility to Member States to start using the EES according to their level of readiness in line with the EES’s high standards for using technologically advanced equipment to collect data;

1.facilitate technical and operational adjustments during the first period of the EES operations by allowing the system to be gradually deployed;

2.better manage and avoid potential long waiting times at the external borders;

3.improve the current situation by ensuring that end users, such as border guards, immigration officials, visa authorities and law enforcement officers, have access to the most up-to-date information on travellers’ identities even if the data recorded in the system is incomplete due to the progressive deployment of the EES;

4.ensure that solutions are in place for the Member States to address unexpected situations that may arise following the start of the EES operations to avoid disruptions at external borders and long waiting times;

5.enable national authorities, travellers and carriers to adjust to the new border management processes and technologies;

6.preserve major investments made, in particular those in infrastructure, equipment and human resources, in preparation for the start of the EES operations.

• Consistency with existing policy provisions in the policy area

The current EU legal framework in this area consists of EU legislation on controls at external borders. The proposed legislation also contributes to achieving the objectives set out in the Schengen Borders Code and the Convention implementing the Schengen Agreement. 4

The proposal is consistent with the rules laid down in the General Data Protection Regulation. 5  

The Regulation is fully consistent with the existing legal framework for data protection. It provides targeted temporary derogations from the EES Regulation and the Schengen Borders Code that are necessary to allow for a progressive start of the EES operations.

• Consistency with other EU policies

The progressive start of the EES operations will be consistent with the application of the Visa Information System (VIS) and the future European Travel Information and Authorisation System (ETIAS), as well as with the future interoperability components being developed by eu-LISA, namely the European Search Portal, the shared Biometric Matching Service, the Common Identity Repository and the Multiple-Identity Detector 6 . A revised integrated planning of ETIAS as well as of all interoperability components will be discussed and agreed between the Commission, Member States and eu-LISA in the light of the expected entry into operations of the EES.