Article 4 · Regulation (EU) 2021/1134

Contents

Article 4Amendments to Regulation (EU) 2017/2226#

Regulation (EU) 2017/2226 is amended as follows:

(1)Article 8 is amended as follows:

(a)in paragraph 2, point (e) is replaced by the following:

(e)where the identity of a visa holder is verified using fingerprints or facial image, verify at the borders at which the EES is operated the identity of a visa holder by comparing the fingerprints or facial image of the visa holder with the fingerprints or the facial image taken live that are recorded in the VIS, in accordance with Article 23(2) and (4) of this Regulation and Article 18(6) of Regulation (EC) No 767/2008. Only facial images recorded in the VIS with an indication that the facial image was taken live upon submission of the visa application shall be used for that comparison.”;

(b)the following paragraphs are inserted:“3a.Interoperability shall enable the erasure of the facial image referred to in point (d) of Article 16(1) from the individual file where a facial image is recorded in the VIS with an indication that it was taken live upon submission of the visa application.3b.Interoperability shall enable the EES to automatically notify the VIS in accordance with Article 23(3) of Regulation (EC) No 767/2008 where the exit of a child below the age of 12 is entered in the entry/exit record in accordance with Article 16(3) of this Regulation.”;

(c)the following paragraph is added:“5.From the date of the start of operations of the VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council^note the EES shall be connected to the ESP to enable the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008.

(2)in Article 9(2), the following subparagraph is added:“The EES shall provide the functionality for the centralised management of that list. The detailed rules on managing that functionality shall be laid down in implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).”;

(3)in Article 13, paragraph 3 is replaced by the following:“3.In order to fulfil their obligation under point (b) of Article 26(1) of the Convention implementing the Schengen Agreement, carriers shall use the web service to verify whether a third-country national holding a short-stay visa issued for one or two entries has already used the number of authorised entries or whether the holder of a short-stay visa has reached the maximum duration of the authorised stay.Carriers shall provide the data listed under points (a), (b) and (c) of Article 16(1) of this Regulation. On that basis, the web service shall provide carriers with an OK/NOT OK answer. Carriers may store the information sent and the answer received in accordance with the applicable law. Carriers shall establish an authentication scheme to ensure that only authorised staff may access the web service. It shall not be possible to regard the OK/NOT OK answer as a decision to authorise or refuse entry in accordance with Regulation (EU) 2016/399.Where third-country nationals are refused boarding due to the answer of the web service, carriers shall inform them that this refusal is due to information stored in the EES and shall provide them with information on their rights with regard to access to and rectification or erasure of personal data recorded in the EES.”;

(4)Article 15 is amended as follows:

(a)paragraph 1 is replaced by the following:“1.Where it is necessary to create an individual file or to update the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1), the facial image shall be taken live. This shall not apply to third-country nationals subject to a visa requirement where a facial image is recorded in the VIS with an indication that it was taken live upon submission of the application.”;

(b)paragraph 5 is deleted;

(5)Article 16 is amended as follows:

(a)in paragraph 1, point (d) is replaced by the following:

(d)the facial image as referred to in Article 15, unless a facial image is recorded in the VIS with an indication that it was taken live upon submission of the application.”;

(b)the following paragraph is inserted:“1a.Where, for a third-country national whose individual file contains a facial image as referred to in point (d) of paragraph 1, a facial image is subsequently recorded in the VIS with an indication that it was taken live upon submission of the application, the EES shall erase the facial image from the individual file.”;

(6)in Article 18(2), the following subparagraph is added:“By way of derogation from Article 15(1) and point (d) of Article 16(1) of this Regulation, where the third-country national is refused entry on the basis of a reason corresponding to point (B) or (D) of Part B of Annex V to Regulation (EU) 2016/399 and where there are doubts regarding the authenticity of the facial image recorded in the VIS, the facial image referred to in point (a) of this paragraph shall be taken live and entered in the individual file irrespective of any facial image recorded in the VIS.”;

(7)Article 23 is amended as follows:

(a)in paragraph 2, the third subparagraph is replaced by the following:“If the search in the EES with the data set out in the first subparagraph of this paragraph indicates that data on the third-country national are recorded in the EES, the border authorities shall:

(a)for third-country nationals who are not subject to a visa requirement, compare the live facial image with the facial image referred to in point (b) of Article 17(1) or proceed to a verification of fingerprints against the EES, and

(b)for third-country nationals subject to a visa requirement:

(i)compare the live facial image with the facial image recorded in the EES referred to in point (d) of Article 16(1) of this Regulation or with the facial image taken live recorded in the VIS in accordance with point (5) of Article 9 of Regulation (EC) No 767/2008, or

(ii)proceed to a verification of fingerprints directly against the VIS in accordance with Article 18 of Regulation (EC) No 767/2008.

For the verification of fingerprints or the facial image taken live against the VIS for visa holders, the border authorities may launch the search in the VIS directly from the EES as provided in Article 18(6) of Regulation (EC) No 767/2008.”;

(b)in the second subparagraph of paragraph 4, point (a) is replaced by the following:

(a)for third-country nationals who are subject to a visa requirement, if the search in the VIS with the data referred to in Article 18(1) of Regulation (EC) No 767/2008 indicates that data on the third-country national are recorded in the VIS, a verification of fingerprints or the facial image taken live against the VIS shall be carried out in accordance with Article 18(6) of that Regulation. For that purpose, the border authority may launch a search from the EES to the VIS as provided for in Article 18(7) of Regulation (EC) No 767/2008. Where a verification of a third-country national pursuant to paragraph 2 of this Article failed, the border authorities shall access the VIS data for identification in accordance with Article 20 of Regulation (EC) No 767/2008.”;

(8)in Article 24 the following paragraph is added:“5.The competent visa authorities and the authorities competent to decide on an application for a long-stay visa or residence permit shall have access to the relevant data in the EES for the purpose of manually verifying the hits resulting from the queries in the EES in accordance with Articles 9c and 22b of Regulation (EC) No 767/2008 as well as for the purpose of examining and deciding on those applications.”;

(9)in Article 35, paragraph 4 is replaced by the following:“4.Where a Member State has evidence to suggest that visa-related data recorded in the EES are factually inaccurate or incomplete or that such data were processed in the EES in breach of this Regulation, it shall first check the accuracy of those data against the VIS and shall, if necessary, rectify or complete them in, or erase them from, the EES. Where the data recorded in the VIS are the same as those recorded in the EES, it shall inform the Member State responsible for entering those data in the VIS immediately in accordance with Article 24(2) of Regulation (EC) No 767/2008. The Member State responsible for entering the data in the VIS shall check those data and shall, if necessary, immediately rectify or complete them in, or erase them from, the VIS and inform the Member State concerned which shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, the list of identified persons referred to in Article 12(3).”.