Third-country nationals for whom data are to be entered in the EES

1. On entry and exit, data on the following categories of persons shall be entered in the EES in accordance with Articles 16, 17, 19 and 20 of Regulation (EU) 2017/2226:

third-country nationals admitted for a short stay pursuant to Article 6(1) of this Regulation;

third-country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who do not hold a residence card pursuant to that Directive;

third-country nationals who:

are members of the family of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002.

2. Data on third-country nationals whose entry for a short stay has been refused in accordance with Article 14 of this Regulation shall be entered in the EES in accordance with Article 18 of Regulation (EU) 2017/2226.

3. Data on the following categories of persons shall not be entered in the EES:

third-country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who hold a residence card pursuant to that Directive, whether or not they accompany or join that Union citizen;

third-country nationals who are members of the family of a national of a third country, whether or not they accompany or join that national of a third country, where:

that national of a third country enjoys the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other, and

those third-country nationals hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;

holders of residence permits referred to in point 16 of Article 2 other than those covered by points (a) and (b) of this paragraph;

holders of long-stay visas;

third-country nationals exercising their right to mobility in accordance with Directive 2014/66/EU of the European Parliament and of the Council ( *3 ) or Directive (EU) 2016/801 of the European Parliament and of the Council ( *4 ) ;

nationals of Andorra, Monaco and San Marino and holders of a passport issued by the Vatican City State;

persons or categories of persons exempt from border checks or benefitting from specific rules in relation to border checks, namely:

Heads of State, Heads of Government and members of national government with accompanying spouses, and members of their official delegation, and sovereigns and other senior members of a royal family, in accordance with point 1 of Annex VII;

pilots of aircraft and other crew members in accordance with point 2 of Annex VII;

seamen in accordance with point 3 of Annex VII, and seamen who are present within the territory of a Member State only when their ship puts in and in the area of the port of call;

cross-border workers in accordance with point 5 of Annex VII;

rescue services, police, fire brigades acting in an emergency situation and border guards, in accordance with point 7 of Annex VII;

offshore workers in accordance with point 8 of Annex VII;

crew members and passengers of cruise ships in accordance with points 3.2.1, 3.2.2 and 3.2.3 of Annex VI;

(viii)

persons on board a pleasure boat who are not subject to border checks in accordance with points 3.2.4, 3.2.5 and 3.2.6 of Annex VI;

persons who benefit from a derogation from the obligation to cross external borders only at border crossing points and during the fixed opening hours pursuant to Article 5(2);

persons who present a valid local border traffic permit for their border crossing in accordance with Regulation (EC) No 1931/2006 of the European Parliament and of the Council ( *5 ) ;

members of the crew of passenger and goods trains on international connections;

persons who present for their border crossing:

a valid Facilitated Rail Transit Document issued in accordance with Council Regulation (EC) No 693/2003 ( *6 ) ; or

a valid Facilitated Transit Document issued in accordance with Regulation (EC) No 693/2003 provided that they transit by train and they do not disembark within the territory of a Member State.

Article 8 is amended as follows:

paragraph 2 is amended as follows:

in point (a), the second subparagraph is replaced by the following:

‘If the travel document contains an electronic storage medium (chip), the authenticity and integrity of the chip data shall be confirmed using the complete valid certificate chain, unless this is technically impossible or, in the case of a travel document issued by a third country, impossible due to the unavailability of valid certificates;’;

in point (b), the following subparagraph is added:

‘For persons whose entry is subject to a registration in the EES pursuant to Article 6a of this Regulation, a verification of their identity in accordance with Article 23(2) of Regulation (EU) 2017/2226 and, where applicable, an identification in accordance with Article 23(4) of that Regulation shall be carried out.’;

paragraph 3 is amended as follows:

in point (a)(i), the second subparagraph is replaced by the following:

‘For passports and travel documents containing an electronic storage medium (chip), the authenticity and integrity of the chip data shall be checked, subject to the availability of valid certificates.

With the exception of third-country nationals for whom an individual file is already registered in the EES, where the travel document contains a facial image recorded in the electronic storage medium (chip) and that facial image can be technically accessed, this verification shall include the verification of that facial image, by comparing electronically that facial image with the live facial image of the third-country national concerned. If technically and legally possible, this verification may be done by verifying the live fingerprints against the fingerprints recorded in the electronic storage medium (chip);’;

in point (a), point (iii) is replaced by the following:

‘(iii)

for persons whose entry or whose refusal of entry is subject to a registration in the EES pursuant to Article 6a of this Regulation, a verification of their identity in accordance with Article 23(2) of Regulation (EU) 2017/2226 and, where applicable, an identification in accordance with Article 23(4) of that Regulation;’;

in point (a), the following point is inserted:

‘(iiia)

for persons whose entry or whose refusal of entry is subject to a registration in the EES pursuant to Article 6a of this Regulation, verification that the third-country national has not reached or exceeded the maximum duration of authorised stay on the territory of the Member States and, for third-country nationals holding a visa issued for one or two entries, verification that they have respected the number of the maximum authorised entries, by consulting the EES in accordance with Article 23 of Regulation (EU) 2017/2226;’;

in point (g), point (i) is replaced by the following:

verification of the identity and the nationality of the third-country national and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular:

the SIS;

Interpol’s SLTD database;

national databases containing information on stolen, misappropriated, lost and invalidated travel documents.

For passports and travel documents containing an electronic storage medium (chip), the authenticity and integrity of the chip data shall be checked, subject to the availability of valid certificates.

With the exception of third-country nationals for whom an individual file is already registered in the EES, where the travel document contains a facial image recorded in the electronic storage medium (chip) and that facial image can be technically accessed, this verification shall include the verification of that facial image, by comparing electronically that facial image with the live facial image of the concerned third-country national. If technically and legally possible, this verification may be done by verifying the live fingerprints against the fingerprints recorded in the electronic storage medium (chip);’;

in point (g), the following points are added:

‘(iii)

for persons whose exit is subject to a registration in the EES pursuant to Article 6a of this Regulation, a verification of their identity in accordance with Article 23(2) of Regulation (EU) 2017/2226 and, where applicable, an identification in accordance with Article 23(4) of that Regulation;

for persons whose exit is subject to a registration in the EES pursuant to Article 6a of this Regulation, verification that the third-country national has not exceeded the maximum duration of authorised stay on the territory of the Member States, by consulting the EES in accordance with Article 23(3) of Regulation (EU) 2017/2226;’;

in point (h), point (ii) is deleted;

point (i) is replaced by the following:

for the purpose of the identification of any person who does not fulfil, or who no longer fulfils, the conditions for entry, stay or residence on the territory of the Member States, the VIS may be consulted in accordance with Article 20 of Regulation (EC) No 767/2008 and the EES may be consulted in accordance with Article 27 of Regulation (EU) 2017/2226;’;

the following paragraph is added:

‘9. The third-country nationals shall be informed of the maximum number of days of authorised stay, which shall take into account the number of entries and the length of stay authorised by the visa. That information shall be provided either by the border guard at the moment of the border checks or by means of equipment installed at the border crossing point enabling the third-country national to consult the web service as referred to in Article 13(1) and (2) of Regulation (EU) 2017/2226.’;

the following Articles are inserted:

REGULATION (EU) 2017/2225 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 November 2017 amending Regulation (EU) 2016/399 as regards the use of the Entry/Exit System ANNEX