Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

Changedon the proposal for a Regulationregulation of the European Parliament and of the Council on a temporary derogation from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 as regards a progressive start of operations of the Entry/Exit System

Changed(COM(2024)0567 – C10-0207/2024C100207/2024 – 2024/0315(COD))

▸6 unchanged paragraphs

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2024)0567),

– having regard to Article 294(2) and Article 77(2) points (b) and (d) and Article 87(2) point (a) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C10-0207/2024),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to Rule 60 of its Rules of Procedure,

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A10-0000/2025),(A10-0082/2025),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 3: (3) Regulation (EU) 2017/2226 only allows for a full start of operations, requiring all Member States to start using the EES fully for all third-country nationals subject to registration in the EES and to use the EES simultaneously at all their border crossing points. However, a full start of operations of all EES functionalities at all border crossing points simultaneously constitutes a risk factor for the resilience of the EES as a whole and for passenger flows at the external borders.

AddedAMENDMENTS BY THE EUROPEAN PARLIAMENT*

RemovedRecital 4: (4) To provide Member States with the necessary flexibility where they start using the EES and facilitate technical and operational adjustments when starting to operate the EES, it is necessary to lay down rules for a progressive start of operations of the EES during which Member States should be able to opt for a phased roll-out of the EES. To ensure these adjustments reflect potential travel flows and seasonal peaks, such a progressive start should have a duration of 180 calendar days.

Addedto the Commission proposal

RemovedRecital 5: (5) To enable a progressive start of operations of the EES it is necessary to derogate from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 of the European Parliament and of the Council3 (‘Schengen Borders Code’). Other rules set out in Regulation (EU) 2017/2226 that are not affected by this Regulation apply as provided for in that Regulation. In particular, the data recorded in the EES throughout the progressive start of operations follow the rules set out in Regulation (EU) 2017/2226 and are considered reliable and accurate. This Regulation does not affect the validity of the notifications already provided to the Commission by Member States under Article 66(1) of Regulation (EU) 2017/2226.

Added---------------------------------------------------------

RemovedRecital 6: (6) Member States that do not start operating the EES fully at all their border crossing points simultaneously should progressively start operating the EES to record, on entry and exit, the data of third-country nationals subject to registration in the EES at one or more border crossing points. If possible and applicable, Member States should include a combination of air, land and sea border crossing points. To ensure a controlled launch of the EES and to better manage and avoid potential long waiting times at the borders, where relevant, Member States should deploy all the functionalities of the EES progressively and register the data of all third-country nationals subject to registration in the EES gradually. To ensure the goal of the full use of the EES at all border crossing points in the Union, the progressive start of operations should include thresholds, which should set the minimum requirements to be reached by Member States.

AddedREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

RemovedRecital 7: (7) To facilitate a smooth deployment of the EES, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) should develop a high-level roll-out plan to provide guidance to Member States and Union agencies on planning and executing the EES deployment during its progressive start of operations and should submit it to the Commission, Member States and Union agencies.

Addedon a temporary derogation from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 as regards a progressive start of operations of the Entry/Exit System

RemovedRecital 8: (8) To facilitate a smooth deployment of the EES, Member States should, in consultation with the Commission and eu-LISA, develop national roll-out plans and present those plans to the Commission. For each of the phases of the progressive start of the EES operations, the national roll-out plans should include the information on the set thresholds and requirements, in particular: (i) the date from which the EES will operate at each border crossing point; (ii) the percentage of the estimated number of border crossings to be registered in the EES out of the total number of third-country nationals subject to registration in the EES; and (iii) where applicable, the biometric functionalities to be operated at each selected border crossing point. When preparing their respective national roll-out plans, Member States are encouraged to appropriately coordinate with the operators of infrastructure where border crossing points are located. To monitor compliance with the progressive start of operations, Member States should provide the Commission and eu-LISA monthly reports on the implementation of their roll-out plans. Such monthly reports should include corrective measures, where necessary, to ensure compliance with the progressive start of operations.

AddedTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

RemovedRecital 9: (9) Due to the progressive start of operations of the EES and resulting incompleteness of the data recorded in the EES, travel documents of third-country nationals should be systematically stamped on entry and exit during the progressive start of operations of the EES. National authorities should take into account the possible incompleteness of entry/exit records or of refusal of entry records and should consider stamps as prevailing over the information registered in the EES. In addition, when providing information to third-country nationals about the maximum remaining duration of their authorised stay, national authorities should base their assessment on the stamps affixed in the travel documents. The data recorded in the EES should prevail in case a stamp is missing.

AddedHaving regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2) points (b) and (d) and Article 87(2) point (a), thereof,

RemovedRecital 11: (11) To provide Member States with the necessary time to adjust to the start of the EES, for the first 60 calendar days of the progressive start of operations, the use of biometric functionalities at border crossing points should not be mandatory. No later than the 90th calendar day of the progressive start of operations, Member States should operate the EES with biometric functionalities at least at half of their border crossing points. Providing biometric data should not be an entry condition for third-country nationals subject to registration in the EES at the border crossing points where the EES is operated without biometric functionalities.

AddedHaving regard to the proposal from the European Commission,

RemovedRecital 23: (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.

AddedAfter transmission of the draft legislative act to the national parliaments,

RemovedRecital 24: (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.

AddedActing in accordance with the ordinary legislative procedure,

RemovedRecital 24 a (new): (24 a) 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.

AddedWhereas:

RemovedRecital 27: (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(1) Article 66(1) of Regulation (EU) 2017/2226 of the European Parliament and of the Council, establishing the Entry/Exit System (‘EES’), provides that the Commission is to decide the date from which the EES is to start operations, provided that certain conditions are met.

RemovedArticle 2 – paragraph 1 – point c: (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 calendar year from the date of application referred to in Article 8(1), second subparagraph, of this Regulation.

Added(2) However, the Commission has not received all notifications pursuant to Article 66(1), point (c), of Regulation (EU) 2017/2226, which is one of the conditions for deciding on the start of operations of the EES.

RemovedArticle 3 – title: Roll-out plans and monthly reports

Added(3) Regulation (EU) 2017/2226 only allows for a full start of operations, requiring all Member States to start using the EES fully for all third-country nationals subject to registration in the EES and to use the EES simultaneously at all their border crossing points. However, a full start of operations of all EES functionalities at all border crossing points simultaneously constitutes a risk for the resilience of the EES as a whole and for passenger flows at the external borders.

Change 2

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Change 3

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Change 4

RemovedArticle 3 – paragraph 3: deleted

Added(6) Member States that do not intend to use the EES simultaneously at all their border crossing points from the start of operations, should progressively start operating the EES to record, on entry and exit, the data of third-country nationals subject to registration in the EES at one or more border crossing points, or at one or more lanes of such border crossing points. If possible and applicable, Member States should include a combination of air, land and sea border crossing points. To ensure a controlled launch of the EES and to better manage and avoid potential long waiting times at the borders, where relevant, and if necessary, Member States should deploy all the functionalities of the EES progressively and register the data of all third-country nationals subject to registration in the EES gradually. To ensure the full use of the EES at all border crossing points in the Union, where Member States choose a progressive start of operations it should be implemented in phases, which should set the minimum requirements to be reached by Member States. Member States will retain the possibility to accelerate implementation at national level or start operating the EES fully from the start of operations. The gradual processing of data in the EES should be carried out in full respect of the rights of data subjects as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council1a and should not lead, directly or indirectly, to any form of discrimination or profiling. The Commission, in consultation with the European Data Protection Supervisor, should issue guidelines on the processing of personal data in the EES during the progressive start of operations.

RemovedArticle 3 – paragraph 4: 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 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(7) To facilitate a smooth deployment of the EES, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) should develop a high-level roll-out plan to 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 to the end-users, including the Member States and Union agencies on planning and executing the EES deployment during its progressive start of operations and should submit it to the European Parliament, the Commission, Member States and Union agencies. ▌

RemovedArticle 3 – paragraph 5: 5. At the request of the Commission, eu-LISA shall provide the Commission with the statistics necessary for the monitoring 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(8) To facilitate a smooth deployment of the EES, Member States should develop national roll-out plans in consultation with the Commission and eu-LISA and present those plans to the Commission. For each of the phases of the progressive start of the EES operations, the national roll-out plans should include the information on the set thresholds and requirements, in particular: (i) the date from which the EES will operate at each border crossing point; (ii) the percentage of the estimated number of border crossings to be registered in the EES out of the total number of third-country nationals subject to registration in the EES; and (iii) where applicable, the biometric functionalities to be operated at each selected border crossing point. When preparing their respective national roll-out plans, Member States should appropriately coordinate with the operators of infrastructure where border crossing points are located. and 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. To monitor compliance with the progressive start of operations, Member States should provide the Commission and eu-LISA monthly reports on the implementation of their roll-out plans unless and until the EES is used fully for all third-country nationals subject to registration in the EES and is used simultaneously at all border crossing points in the Member State. Such monthly reports should include corrective measures, where necessary, to ensure compliance with the progressive start of operations. The Commission should issue guidelines to facilitate the adoption of national roll-out plans and monthly reports by the Member States that are concise and proportionate.

RemovedArticle 4 – paragraph 2 – subparagraph 1: 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(8a) To facilitate a smooth deployment of the EES, it is important that neither the start nor the end of the progressive start of operations of the EES coincide with the peak travel seasons in summer, June to August, or winter, December to February.

RemovedArticle 4 – paragraph 3: 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(9) Due to the progressive start of operations of the EES and resulting incompleteness of the data recorded in the EES, travel documents of third-country nationals should be systematically stamped on entry and exit during the progressive start of operations of the EES. National authorities should take into account the possible incompleteness of entry/exit records or of refusal of entry records and should consider stamps as prevailing over the information registered in the EES. In addition, when providing information to third-country nationals about the maximum remaining duration of their authorised stay, national authorities should base their assessment on the stamps affixed in the travel documents. The data recorded in the EES should be used in the calculation of maximum remaining duration only in case a stamp is missing.

RemovedArticle 4 – paragraph 4: 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(10) Considering that the data registered in the EES during the progressive start of operations of the EES might be incomplete, national authorities should not take into account the results provided by the automated calculator on the maximum remaining duration of the authorised stay of third-country nationals registered in the EES. Similarly, when carrying out their tasks, national authorities should not take into account the automated mechanism to identify or flag the lack of exit records following the date of expiry of an authorised stay or the records for which the maximum duration of authorised stay was exceeded, as well as the generated lists of persons identified as overstayers.

Change 5

ChangedArticle(11) 4To –provide paragraphMember 5:States 5.with Nothe laternecessary thantime to adjust to the 170thstart of the EES, for the first 60 calendar daydays of the progressive start of operationsoperations, the use of biometric functionalities at border crossing points should not be mandatory. However, Member States are encouraged to make use of those functionalities during that period in order to support a smooth operational transition and to enable the EES,timely detection and resolution of any potential implementation issues. No later than the 90th calendar day of the progressive start of operations, Member States shallshould operate the EES with biometric functionalities at allleast at half of their border crossing pointspoints. andProviding shallbiometric registerdata inshould thenot EESbe allan entry condition for third-country nationals referredsubject to registration in Articlethe 2(1)EES andat (2)the ofborder Regulationcrossing (EU)points 2017/2226.where the EES is operated without biometric functionalities.

Change 6

RemovedArticle 5 – paragraph 4 – subparagraph 2: 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(12) To accommodate the need to progressively deploy the EES with biometric functionalities at some border crossing points, the biometric verification of third-country nationals subject to registration in the EES should only be carried out at the border crossing points at which the EES is operated with biometric functionalities.

RemovedArticle 7 – paragraph 1 – subparagraph 4: In both cases, Member States shall 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 shall notify to the Commission and eu-LISA the reason for the partial or full suspension and its expected duration. Once the exceptional circumstances that led to the suspension cease, Member States shall end the suspension and promptly notify the Commission, eu-LISA and the operators of infrastructure hosting border crossing points and carriers thereof.

Added(13) To ensure coherence of the operations of the interoperability between the Visa Information System (VIS) established by Regulation (EC) No 767/2008 of the European Parliament and of the Council and the EES, the VIS should only be accessed directly at those border crossing points at which the EES is not operated. At the border crossing points at which the EES is operated, border authorities should make use of the interoperability between the EES and the VIS.