Article 2 · Regulation (EU) 2021/1134

Contents

Article 2Amendments to Regulation (EC) No 810/2009#

Regulation (EC) No 810/2009 is amended as follows:

(1)Article 10 is amended as follows:

(a)paragraph 1 is replaced by the following:“1.When lodging an application, applicants shall, where required in accordance with Article 13, appear in person to provide their fingerprints or facial image. Without prejudice to the first sentence of this paragraph and to Article 45, applicants may lodge their applications electronically, where available.”;

(b)paragraph 3 is amended as follows:

(i)point (c) is replaced by the following:

(c)allow his or her facial image to be taken live in accordance with Article 13 or, where the exemptions referred to in Article 13(7a) apply, present a photograph in accordance with the standards set out in Regulation (EC) No 1683/95;”;

(ii)the following subparagraph is added:“Without prejudice to point (c) of this paragraph, Member States may require the applicant to present a photograph in accordance with the standards set out in Regulation (EC) No 1683/95 at every application.”;

(2)Article 13 is amended as follows:

(a)paragraphs 1 to 4 are replaced by the following:“1.Member States shall collect biometric identifiers of the applicant comprising a facial image and 10 fingerprints of the applicant in accordance with the safeguards laid down in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child.2.At the time of submission of the first application and subsequently at least every 59 months thereafter, the applicant shall be required to appear in person. At that time, the following biometric identifiers of the applicant shall be collected:

(a)a facial image taken live at the time of the application;

(b)10 fingerprints taken flat and collected digitally.

2a.The facial images and fingerprints referred to in paragraph 2 of this Article shall be collected for the sole purpose of recording them in the VIS in accordance with points (5) and (6) of Article 9 of the VIS Regulation and the national systems for visa processing.3.Where fingerprints and a live facial image of sufficient quality were collected from the applicant and entered in the VIS as part of an application lodged less than 59 months before the date of the new application, those data shall be copied to the subsequent application.However, where there is reasonable doubt regarding the identity of the applicant, the consulate shall collect the fingerprints and facial image of that applicant within the period specified in the first subparagraph.Furthermore, if at the time when the application is lodged, it cannot be immediately confirmed that the fingerprints were collected within the period specified in the first subparagraph, the applicant may request that they be collected.4.The facial image of third-country nationals referred to in paragraph 2 shall have sufficient image resolution and be of sufficient quality to be used in automated biometric matching. The technical requirements for this facial image of the applicant referred to in paragraph 2 shall be in accordance with the international standards as set out in the International Civil Aviation Organization (ICAO) document 9303, 8th edition.”;

(b)the following paragraph is inserted:“6a.When collecting biometric identifiers of minors all of the following conditions shall be met:

(a)the staff taking the biometric identifiers of a minor have been trained specifically to take a minor’s biometric data in a child-friendly and child-sensitive manner and in full respect of the best interests of the child and the safeguards laid down in the United Nations Convention on the Rights of the Child;

(b)every minor is accompanied by an adult family member or legal guardian when the biometric identifiers are taken;

(c)no force is used to take the biometric identifiers.”;

(c)paragraph 7 is amended as follows:

(i)point (a) is replaced by the following:

(a)children below the age of six and persons over the age of 75;”;

(ii)the following point is added:

(e)persons who are required to appear as witness before international courts and tribunals in the territory of the Member States and their appearance in person to lodge an application would put them in serious danger.”;

(d)the following paragraphs are inserted:“7a.Applicants as referred to in points (c), (d) and (e) of paragraph 7 may also be exempt from having their facial images taken live upon submission of the application.7b.In exceptional cases where the quality and resolution specifications set for the live enrolment of the facial image cannot be met, the facial image may be extracted electronically from the chip of the electronic Machine Readable Travel Document (eMRTD). Before extracting the data from the chip, the authenticity and integrity of the chip data shall be confirmed using the complete valid certificate chain, unless this is technically impossible or impossible due to the unavailability of valid certificates. In such cases, the facial image shall only be inserted into the application file in the VIS pursuant to Article 9 of the VIS Regulation after electronic verification that the facial image recorded in the chip of the eMRTD corresponds to the live facial image of the third-country national concerned.”;

(e)paragraph 8 is deleted;

(3)Article 21 is amended as follows:

(a)the following paragraphs are inserted:“3a.For the purpose of assessing the entry conditions provided for in paragraph 3 of this Article, the consulate or the central authorities shall take into account, where applicable, the result of the verifications of hits pursuant to Article 9c of the VIS Regulation or the reasoned opinion provided in accordance with Articles 9e and 9g of that Regulation by the VIS designated authority as defined in point (3b) of Article 4 of the VIS Regulation or the ETIAS National Unit as referred to in Article 8 of Regulation (EU) 2018/1240 of the European Parliament and of the Council^note.By way of derogation from Article 4(1), in the case of applications where a reasoned opinion was provided by the VIS designated authority or the ETIAS National Unit, the central authorities shall either be empowered to decide on the application themselves or shall, after assessing the reasoned opinion, inform the consulate processing the application that they object to the issuance of the visa.3b.For the purpose of assessing the entry conditions provided for in paragraph 3 of this Article, the consulate or the central authorities shall, where a red link exists in accordance with Article 32 of Regulation (EU) 2019/817 of the European Parliament and of the Council^note, assess and take into account the differences in the linked identities.3c.Hits against the specific risk indicators referred to in Article 9j of the VIS Regulation pursuant to Article 9a(13) of that Regulation shall be taken into account in the examination of an application. The consulate and the central authorities shall in no circumstances take a decision automatically on the basis of a hit based on specific risk indicators. The consulate or the central authorities shall individually assess the security, illegal immigration and high epidemic risks in all cases.

(b)paragraph 4 is replaced by the following:“4.The consulate or the central authorities shall verify, using the information obtained from the EES, in accordance with Article 24 of Regulation (EU) 2017/2226 of the European Parliament and of the Council^note, whether the applicant will not exceed with the intended stay the maximum duration of authorised stay in the territory of the Member States, irrespective of possible stays authorised under a national long-stay visa or a residence permit.

(c)the following paragraph is inserted:“8a.Consulates shall pay particular attention to the correct verification of the identity of minors and the link with the person exercising parental authority or legal guardianship in order to prevent child trafficking.”;

(4)in point (a) of Article 25(1), the following point is added:

(iv)to issue a visa for reasons of urgency, although the verifications of hits in accordance with Articles 9a to 9g of the VIS Regulation have not been completed;”;

(5)in Article 35, the following paragraph is inserted:“5a.A third-country national for whom the verifications of hits in accordance with Articles 9a to 9g of the VIS Regulation have not been completed shall, in principle, not be issued a visa at the external border.However, a visa with limited territorial validity for the territory of the issuing Member State may be issued at the external border for such persons in exceptional cases, in accordance with point (a) of Article 25(1).”;

(6)in Article 36, paragraph 3 is replaced by the following:“3.This Article shall apply without prejudice to Article 35(3) to (5a).”;

(7)in Article 39, paragraphs 2 and 3 are replaced by the following:“2.Consular and central authorities’ staff shall, in the performance of their duties, fully respect human dignity and the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union. Any measures taken shall be proportionate to the objectives pursued by such measures.3.While performing their tasks, consular and central authorities’ staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. They shall pay particular attention to children, the elderly and persons with a disability. The best interests of the child shall be a primary consideration.”;

(8)Article 46 is deleted;

(9)Article 57 is amended as follows:

(a)paragraph 1 is replaced by the following:“1.Two years after all the provisions of this Regulation have become applicable, the Commission shall produce an overall evaluation of its application. The overall evaluation shall include an examination of the results achieved against the objectives pursued and of the implementation of this Regulation.”;

(b)paragraphs 3 and 4 are deleted;

(10)in point C(b) of Annex X, the second indent is replaced by the following:

—respect the human dignity and integrity of applicants, do not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation,

—respect the provisions regarding the taking of biometrics identifiers laid down in Article 13, and”;

(11)Annex XII is deleted.