Regulation (EU) 2021/1133 of the European Parliament and of the Council of 7 July 2021 amending Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the Visa Information System
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Address https://gelex.eu/eli/EU/regulation/2021/1133@2021-07-07/en
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular point (e) of Article 78(2), point (d) of Article 82(1), point (a) of Article 87(2), and Article 88(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee,
After consulting the Committee of the Regions,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) The Visa Information System (VIS) was established by Council Decision 2004/512/EC to serve as the technological solution for exchanging visa data between Member States. Regulation (EC) No 767/2008 of the European Parliament and of the Council laid down the purpose, functionalities and responsibilities for the VIS, as well as the conditions and procedures for the exchange of short-stay visa data between Member States to facilitate the examination of applications for short-stay visas and related decisions. Regulation (EC) No 810/2009 of the European Parliament and of the Council set out the rules on the registration of biometric identifiers in the VIS. The access of law enforcement authorities of the Member States and of the European Union Agency for Law Enforcement Cooperation (Europol) to the VIS was established by Council Decision 2008/633/JHA. That Decision should be integrated into Regulation (EC) No 767/2008, to bring it in line with the current Treaty framework.
(2) Interoperability between certain EU information systems was established by Regulations (EU) 2019/817 and (EU) 2019/818 of the European Parliament and of the Council so that those systems and their data supplement each other with a view to improving the effectiveness and efficiency of border checks at the external borders of the Union, contributing to preventing and combating illegal immigration and contributing to a high level of security within the area of freedom, security and justice of the Union, including the maintenance of public security and public policy and safeguarding security in the territories of the Member States.
(3) Interoperability between the EU information systems allows those systems to supplement each other in order to facilitate the correct identification of persons, contribute to fighting identity fraud, improve and harmonise data quality requirements of the relevant EU information systems, facilitate the technical and operational implementation by Member States of existing and future EU information systems, strengthen and simplify the data security and data protection safeguards that govern the relevant EU information systems, streamline the law enforcement access to the VIS, the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS) and Eurodac, and support the purposes of the VIS, Schengen Information System (SIS), the EES, the ETIAS, Eurodac and the European Criminal Records Information System for third-country nationals (ECRIS-TCN).
(4) The interoperability components cover the VIS, the SIS, the EES, the ETIAS, Eurodac and ECRIS-TCN, as well as Europol data to enable Europol data to be queried simultaneously with those EU information systems. It is therefore appropriate to use those interoperability components for the purpose of carrying out automated queries and when accessing the VIS for law enforcement purposes. The European search portal (ESP) established by Regulation (EU) 2019/818 should be used to enable fast, seamless, efficient, systematic and controlled access by Member States’ authorities to the EU information systems, the Europol data and the Interpol databases needed to perform their tasks, in accordance with their access rights, and to support the objectives of the VIS.
(5) The ESP will enable the data stored in the VIS and the data stored in the other EU information systems concerned to be queried in parallel.
(6) The comparison of data stored in the VIS against data stored in other information systems and databases should be automated. If such a comparison reveals the existence of a correspondence, known as a hit, between any of the personal data or combination thereof in an application and a record, file or alert in those other information systems or databases, or with personal data in the ETIAS watchlist, the application should be verified manually by an operator from the competent authority. The assessment of hits performed by the competent authority should be taken into account for the decision whether to issue a short-stay visa, a long-stay visa or a residence permit.
(7) This Regulation lays down the manner in which interoperability and the conditions for the consultation of the data stored in SIS, Eurodac and ECRIS-TCN as well as of the Europol data by the VIS automated process for the purpose of identifying hits are to be implemented. As a result, it is necessary to amend Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 of the European Parliament and of the Council in order to connect the VIS to the other EU information systems and to Europol data.
(8) The conditions under which, on the one hand, the visa authorities are able to consult data stored in Eurodac and, on the other, the VIS designated authorities are able to consult Europol data, certain SIS data and data stored in ECRIS-TCN for the purposes of the VIS should be safeguarded by clear and precise rules regarding the access by those authorities to those data, the type of queries and categories of data, all of which should be limited to what is strictly necessary for the performance of the duties of those authorities. In the same vein, the data stored in the VIS application file should be visible only to those Member States that are operating the underlying information systems in accordance with the arrangements for their participation.
(9) Regulation (EU) 2021/1134 of the European Parliament and of the Council allocates new tasks to Europol such as the provision of opinions following consultation requests by the VIS designated authorities and the ETIAS National Units. To implement those tasks, it is therefore necessary to amend Regulation (EU) 2016/794 accordingly.
(10) In order to support the VIS objective of assessing whether an applicant for a short-stay visa, a long-stay visa or a residence permit could pose a threat to public policy or public security, the VIS should be able to verify whether any correspondence exists between data in the VIS application files and the ECRIS-TCN data in the Common Identity Repository (CIR) established by Regulation (EU) 2019/818 in regard to which Member States hold information on third-country nationals and stateless persons concerning convictions for a terrorist offence or any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 of the European Parliament and of the Council if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law.
(11) A hit indicated by ECRIS-TCN should not by itself be taken to mean that the third-country national concerned has been convicted in the Member States that are indicated. The existence of previous convictions should be confirmed only on the basis of information received from the criminal records of the Member States concerned.
(12) This Regulation is without prejudice to Directive 2004/38/EC of the European Parliament and of the Council.
(13) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union (TEU) and to the Treaty on the Functioning of the European Union (TFEU), Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, 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.
(14) Insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, Ireland is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the TFEU, and Article 6(2) of Council Decision 2002/192/EC. Furthermore, insofar as it relates to Europol, Eurodac and ECRIS-TCN, in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(15) As regards Iceland and Norway, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point G, of Council Decision 1999/437/EC.
(16) As regards Switzerland, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of 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 which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/149/JHA.
(17) As regards Liechtenstein, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of 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 which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU.
(18) For this Regulation to fit into the existing legal framework, Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 should be amended accordingly,
HAVE ADOPTED THIS REGULATION:
Article 1 Amendments to Regulation (EU) No 603/2013
Regulation (EU) No 603/2013 is amended as follows:
(1) CHAPTER VIa ACCESS BY VISA AUTHORITIES the following Chapter is inserted:
Article 1 Amendments to Regulation (EU) No 603/2013
(1) CHAPTER VIa ACCESS BY VISA AUTHORITIES
Article 22a Access to Eurodac by the competent visa authorities
The competent visa authorities shall have access to Eurodac to consult data in a read-only format for the purpose of manually verifying hits triggered by the automated queries carried out by VIS pursuant to Article 9a of Regulation (EC) No 767/2008 of the European Parliament and of the Council and examining and deciding on visa applications in accordance with Article 21 of Regulation (EC) No 810/2009 of the European Parliament and of the Council.
Article 22b Interoperability with VIS
From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council Eurodac shall be connected to the European search portal established by Article 6 of Regulation (EU) 2019/818 of the European Parliament and of the Council to enable the automated processing pursuant to Article 9a of Regulation (EC) No 767/2008.
Article 1 Amendments to Regulation (EU) No 603/2013
(2) the following Article is inserted:
Article 1 Amendments to Regulation (EU) No 603/2013
(2)
Article 28a Keeping of records or logs for the purposes of interoperability with VIS
When consulting Eurodac as referred to in Article 22a of this Regulation, a record or log of each data processing operation carried out within Eurodac and VIS shall be kept in accordance with Article 28 of this Regulation and Article 34 of Regulation (EC) No 767/2008..
Article 2 Amendments to Regulation (EU) 2016/794
Regulation (EU) 2016/794 is amended as follows:
(1) in Article 4(1), the following point is added:
(q) provide an opinion following a consultation request referred to in Article 9e(4), Article 9g(4) and Article 22b(14) and (16) of Regulation (EC) No 767/2008 of the European Parliament and of the Council.
(2) Article 21 is amended as follows:
(a) the title is replaced by the following: Access by Eurojust, OLAF and, only for purposes of ETIAS, by the European Border and Coast Guard Agency and, only for purposes of VIS, by the VIS designated authorities to information stored by Europol;
(b) the following paragraph is inserted:
1b. Europol shall take all appropriate measures to enable the VIS designated authorities, for the purposes of Regulation (EC) No 767/2008, to have indirect access on the basis of a hit/no hit system to data provided for the purposes of point (a) of Article 18(2) of this Regulation, without prejudice to any restrictions indicated by the Member State, Union body, third country or international organisation providing the information in question, in accordance with Article 19(2) of this Regulation. In the case of a hit, Europol shall initiate the procedure by which the information that generated the hit may be shared, in accordance with the decision of the provider of the information to Europol. Such information may be shared only to the extent that the data generating the hit are necessary for the performance of the VIS designated authorities’ tasks related to VIS. Paragraphs 2 to 7 of this Article shall apply accordingly..
Article 3 Amendments to Regulation (EU) 2018/1862
Regulation (EU) 2018/1862 is amended as follows:
(1) the following article is inserted:
Article 3 Amendments to Regulation (EU) 2018/1862
(1)
Article 18a Keeping of logs for the purposes of interoperability with VIS
Logs of each data processing operation carried out within SIS and VIS pursuant to Article 50a of this Regulation shall be kept in accordance with Article 18 of this Regulation and Article 34 of Regulation (EC) No 767/2008 of the European Parliament and of the Council.
Article 3 Amendments to Regulation (EU) 2018/1862
(2) in Article 44(1), the following point is added:
(g) manually verifying hits triggered by automated queries from the VIS and assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or public security, in accordance with Articles 9d and 9g or Article 22b, of Regulation (EC) No 767/2008.;
(3) the following article is inserted:
Article 3 Amendments to Regulation (EU) 2018/1862
(3)
Article 50a Interoperability with VIS
From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council the SIS Central System shall be connected to the ESP to enable the automated processing pursuant to in Articles 9a and 22b of Regulation (EC) No 767/2008.
Article 4 Amendments to Regulation (EU) 2019/816
Regulation (EU) 2019/816 is amended as follows:
(1) in Article 1, the following point is added:
(d) the conditions under which data in ECRIS-TCN may be used by the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008 of the European Parliament and of the Council for the purpose of assessing whether an applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security as referred to in point (i) of Article 2(1) and point (a) of Article 2(2) of that Regulation.
(2) in Article 2, the following paragraph is added: This Regulation also supports the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.;
(3) in Article 3, point (6) is replaced by the following:
(6) competent authorities means the central authorities, Eurojust, Europol and the EPPO, and the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008, which are competent to access or query ECRIS-TCN in accordance with this Regulation;;
(4) Article 5 is amended as follows:
(a) in paragraph 1, the following point is added:
(c) a flag indicating, for the purposes of Regulation (EC) No 767/2008, that the third-country national concerned has been convicted of a terrorist offence or any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law, including the code of the convicting Member State.;
(b) paragraph 1a is replaced by the following:
1a. The CIR shall contain the data referred to in point (b) of paragraph 1 and the following data of point (a) of paragraph 1: surname (family name), first names (given names), date of birth, place of birth (town and country), nationality or nationalities, gender, previous names, if applicable, where available pseudonyms or aliases, where available, the type and number of the person’s travel documents, as well as the name of the issuing authority. The CIR may contain the data referred to in paragraph 3 as well as, in the cases referred to in point (c) of paragraph 1, the code of the convicting Member State. The remaining ECRIS-TCN data shall be stored in the central system.;
(c) the following paragraph is added:
7. Where hits are identified following the automated processing referred to in Article 27a of Regulation (EC) No 767/2008, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 of this Article shall be accessible and searchable only by the VIS Central System for the purposes of the verifications pursuant to Article 7a of this Regulation in conjunction with point (e) of Article 9a(4) or point (e) of Article 22b(3) of Regulation (EC) No 767/2008. Without prejudice to the first subparagraph of this paragraph, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 shall not be visible to any authority other than the central authority of the convicting Member State having created the flagged record.;
(5) in Article 7, paragraph 7 is replaced by the following:
7. In the event of a hit, the central system or the CIR shall automatically provide the competent authority with information on the Member States holding criminal record information on the third-country national, along with the associated reference numbers referred to in Article 5(1) and any corresponding identity information. Such identity information shall be used only for the purpose of verifying the identity of the third-country national concerned. The result of a search in the central system shall be used only for the purpose of:
(a) making a request pursuant to Article 6 of Framework Decision 2009/315/JHA;
(b) making a request as referred to in Article 17(3) of this Regulation; or
(c) assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.;
(6) the following Article is inserted:
Article 4 Amendments to Regulation (EU) 2019/816
(6)
Article 7a Use of ECRIS-TCN for VIS verifications
1. From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council ECRIS-TCN shall be connected to the ESP to enable the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 to query ECRIS-TCN and compare the relevant data in the VIS with the relevant ECRIS-TCN data in the CIR flagged pursuant to point (c) of Article 5(1) of this Regulation.
2. For the purpose of performing the tasks pursuant to Regulation (EC) No 767/2008, the VIS designated authorities as referred to in Article 9d and Article 22b(13) of that Regulation shall have the right to access only those ECRIS-TCN data in the CIR to which a flag has been added pursuant to point (c) of Article 5(1) of this Regulation.
Article 4 Amendments to Regulation (EU) 2019/816
(7) Article 8 is amended as follows:
(a) paragraph 2 is replaced by the following:
2. Upon expiry of the retention period referred to in paragraph 1, the central authority of the convicting Member State shall erase the data record, including any fingerprint data, facial images or flags as referred to in point (c) of Article 5(1), from the central system and the CIR. In cases where the data related to a conviction for a terrorist offence or any other criminal offence as referred to in point (c) of Article 5(1) are erased from the national criminal record, but information on other convictions of the same person is retained, only the flag referred to in point (c) of Article 5(1) shall be removed from the data record. Where possible the erasure shall be done automatically, and in any event no later than one month after the expiry of the retention period.;
(b) the following paragraph is added:
3. By way of derogation from paragraphs 1 and 2, the flags referred to in point (c) of Article 5(1) shall be erased automatically 25 years after the creation of the flag as regards convictions related to terrorist offences, and 15 years after the creation of the flag as regards convictions related to other criminal offences.;
(8) in Article 24, paragraph 1 is replaced by the following:
1. The data entered into the central system and the CIR shall be processed only for the purposes of the identification of the Member States holding the criminal records information of third-country nationals, or to support the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security in accordance with Regulation (EC) No 767/2008. The data entered into the CIR shall also be processed in accordance with Regulation (EU) 2019/818 for facilitating and assisting in the correct identification of persons registered in the ECRIS-TCN in accordance with this Regulation.;
(9) the following Article is inserted:
Article 4 Amendments to Regulation (EU) 2019/816
(9)
Article 31a Keeping of logs for the purposes of interoperability with VIS
For the consultations referred to in Article 7a of this Regulation, a log of each ECRIS-TCN data processing operation carried out within the CIR and VIS shall be kept in accordance with Article 34 of Regulation (EC) No 767/2008..
Article 5 Amendments to Regulation (EU) 2019/818
Regulation (EU) 2019/818 is amended as follows:
(1) in Article 4, point 20 is replaced by the following:
(20) designated authorities means the Member State designated authorities as defined in point (3a) of Article 4 of Regulation (EC) No 767/2008, point (26) of Article 3(1) of Regulation (EU) 2017/2226 and point (21) of Article 3(1) of Regulation (EU) 2018/1240;;
(2) in Article 18, the following paragraph is inserted:
1a. For the purposes of Articles 9a and 22b of Regulation (EC) No 767/2008, the CIR shall also store, logically separated from the data referred to in paragraph 1 of this Article, the data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816. The data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816 shall be accessible only in the manner referred to in Article 5(7) of that Regulation.;
(3) in Article 68, the following paragraph is inserted:
1a. Without prejudice to paragraph 1 of this Article, the ESP shall start operations, for the purposes of the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 only, from the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/1134 of the European Parliament and of the Council.
Article 6 Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall apply from the date of the start of operation of VIS pursuant to Article 11 of Regulation (EU) 2021/1134.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. Done at Strasbourg, 7 July 2021. For the European Parliament The President D. M. Sassoli For the Council The President A. Logar
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