Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification)

TITLE I GENERAL PROVISIONS

Article 1

Subject matter and principles

This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the Union.

It lays down rules governing border control of persons crossing the external borders of the Member States of the Union.

Article 2

Definitions

For the purposes of this Regulation the following definitions apply:

• 1. ‘internal borders’ means:
• (a) the common land borders, including river and lake borders, of the Member States;
• (b) the airports of the Member States for internal flights;
• (c) sea, river and lake ports of the Member States for regular internal ferry connections;

• 1. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders;

• 1. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country;

• 1. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States, and consisting of the transport of passengers and vehicles according to a published timetable;

• 1. ‘persons enjoying the right of free movement under Union law’ means:
• (a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council ([^E0001]) applies;
• (b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens;

• 1. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article;

• 1. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council ([^E0002]);

• 1. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders;

• 1. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement;

• 1. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;

• 1. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it;

• 1. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside fixed opening hours, including preventative measures, to prevent or detect unauthorised border crossings or the circumvention of border checks, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally;

• 1. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line);

• 1. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks;

• 1. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons;

• 1. ‘residence permit’ means:
• (a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 ([^E0003]) and residence cards issued in accordance with Directive 2004/38/EC;
• (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory that have been the subject of a notification and subsequent publication in accordance with Article 39, with the exception of:
• (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum; and
• (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 ([^E0004]);

• 1. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage;

• 1. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes;

• 1. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country;

• 1. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States, as defined under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States;

• 1. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States;

• 1. ‘entry/exit System’ (EES) means the system established by Regulation (EU) 2017/2226 of the European Parliament and of the Council ([^E0005]);

• 1. ‘self-service system’ means an automated system which performs all or some of the border checks that are applicable to a person and which may be used for pre-enrolling data in the EES;

• 1. ‘e-gate’ means an infrastructure operated by electronic means where an external border or an internal border where controls have not yet been lifted is actually crossed;

• 1. ‘automated border control system’ means a system which allows for an automated border crossing, and which is composed of a self-service system and an e-gate;

• 1. ‘confirmation of the authenticity and integrity of the chip data’ means the process by which it is verified, through the use of certificates, that the data on the electronic storage medium (chip) originate from the issuing authority and that they have not been changed;

• 1. ‘large-scale public health emergency’ means a public health emergency, that is recognised at Union level by the Commission, taking into account information from competent national authorities, where a serious cross-border threat to health could have large-scale repercussions on the exercise of the right to free movement;

• 1. ‘essential travel’ means travel by a person who is exempted from restrictions on entry pursuant to Article 21a(4) or (5), in connection with an essential function or need, taking into account any applicable international obligations of the Union and of the Member States;

• 1. ‘non-essential travel’ means travel other than essential travel;

• 1. ‘transport hubs’ means airports, sea or river ports, train or bus stations and freight terminals.

Article 3

Scope

This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:

• (a) the rights of persons enjoying the right of free movement under Union law;

• (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.

Article 4

Fundamental Rights

When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.

TITLE II EXTERNAL BORDERS

CHAPTER I Crossing of external borders and conditions for entry

Article 5

Crossing of external borders

Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39.

• (a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 39;

• (b) for individuals or groups of persons in the event of an unforeseen emergency situation;

• (c) in accordance with the specific rules set out in Articles 19 and 20 in conjunction with Annexes VI and VII.

Member States may, where a large number of migrants attempt to cross their external borders in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order.

Any measures pursuant to the first subparagraph of this paragraph and paragraph 3, second subparagraph of this Article, shall be implemented in a manner that is proportionate and that takes full account of the rights of:

• (a) persons enjoying the right of free movement under Union law;

• (b) third-country nationals who are long-term residents under Council Directive 2003/109/EC ([^E0007]), persons deriving their right to reside from other instruments of Union or national law or who hold national long-stay visas, as well as their respective family members; and

• (c) third-country nationals seeking international protection.

Article 6

Entry conditions for third-country nationals

• (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:
• (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;
• (ii) it shall have been issued within the previous 10 years;

• (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 ([^E0008]), except where they hold a valid residence permit or a valid long-stay visa;

• (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully;

• (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry;

• (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds;

• (f) they provide biometric data, if required for:
• (i) the creation of the individual file in the EES in accordance with Articles 16 and 17 of Regulation (EU) 2017/2226;
• (ii) the carrying out of border checks in accordance with Article 8(3)(a)(i) and (g)(i) of this Regulation, Article 23(2) and (4) of Regulation (EU) 2017/2226 and, where applicable, Article 18 of Regulation (EC) No 767/2008 of the European Parliament and of the Council ([^E0009]).

1a. The period of 90 days in any 180-day period referred to in paragraph 1 of this Article shall be calculated as a single period for the Member States operating the EES on the basis of Regulation (EU) 2017/2226. That period shall be calculated separately for each of the Member States which do not operate the EES.

Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 39.

The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence.

• (a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit;

• (b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/2009 of the European Parliament and of the Council ([^E0010]). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002 ([^E0011]), shall be used;

• (c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly.

Article 6a

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

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

• (b) 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;

• (c) third-country nationals who:
• (i) 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
• (ii) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002.

• (a) 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;

• (b) 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:
• (i) 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
• (ii) 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;

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

• (d) holders of long-stay visas;

• (e) third-country nationals exercising their right to mobility in accordance with Directive 2014/66/EU of the European Parliament and of the Council ([^E0012]) or Directive (EU) 2016/801 of the European Parliament and of the Council ([^E0013]);

• (f) nationals of Andorra, Monaco and San Marino and  holders of a passport issued by the Vatican City State or the Holy See;

• (g) persons or categories of persons exempt from border checks or benefitting from specific rules in relation to border checks, namely:
• (i) 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;
• (ii) pilots of aircraft and other crew members in accordance with point 2 of Annex VII;
• (iii) 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;
• (iv) cross-border workers in accordance with point 5 of Annex VII;
• (v) rescue services, police, fire brigades acting in an emergency situation and border guards, in accordance with point 7 of Annex VII;
• (vi) offshore workers in accordance with point 8 of Annex VII;
• (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;

• (h) 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);

• (i) 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 ([^E0014]);

• (j) members of the crew of passenger and goods trains on international connections;

• (k) persons who present for their border crossing:
• (i) a valid Facilitated Rail Transit Document issued in accordance with Council Regulation (EC) No 693/2003 ([^E0015]); or
• (ii) 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.

CHAPTER II Control of external borders and refusal of entry

Article 7

Conduct of border checks

Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures.

Article 8

Border checks on persons

The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out.

• (a) verification of the identity and the nationality of the person and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular:
• (1) the SIS;
• (2) Interpol’s Stolen and Lost Travel Documents (SLTD) database;
• (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. 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.

• (b) verification that a person enjoying the right of free movement under Union law is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases. Where there are doubts as to the authenticity of the travel document or the identity of its holder, at least one of the biometric identifiers integrated into the passports and travel documents issued in accordance with Regulation (EC) No 2252/2004 shall be verified. Where possible, such verification shall also be carried out in relation to travel documents not covered by that Regulation. 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.

2a. Where the checks against the databases referred to in points (a) and (b) of paragraph 2 would have a disproportionate impact on the flow of traffic, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points, following an assessment of the risks related to the public policy, internal security, public health or international relations of any of the Member States.

The scope and duration of the temporary reduction to targeted checks against the databases shall not exceed what is strictly necessary and shall be defined in accordance with a risk assessment carried out by the Member State concerned. The risk assessment shall state the reasons for the temporary reduction to targeted checks against the databases, take into account, inter alia, the disproportionate impact on the flow of traffic and provide statistics on passengers and incidents related to cross-border crime. It shall be updated regularly.

Persons who, in principle, are not subject to targeted checks against the databases, shall, as a minimum, be subject to a check with a view to establishing their identity on the basis of the production or presentation of travel documents. Such a check shall consist of a rapid and straightforward verification of the validity of the travel document for crossing the border, and of the presence of signs of falsification or counterfeiting, where appropriate by using technical devices, and, in cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard shall consult the databases referred to in points (a) and (b) of paragraph 2.

The Member State concerned shall transmit its risk assessment and updates thereto to the European Border and Coast Guard Agency (‘the Agency’), established by Regulation (EU) 2016/1624 of the European Parliament and of the Council ([^E0016]), without delay and shall report every six months to the Commission and to the Agency on the application of the checks against the databases carried out on a targeted basis. The Member State concerned may decide to classify the risk assessment or parts thereof.

2b. Where a Member State intends to carry out targeted checks against the databases pursuant to paragraph 2a, it shall notify the other Member States, the Agency and the Commission accordingly without delay. The Member State concerned may decide to classify the notification or parts thereof.

Where the Member States, the Agency or the Commission have concerns about the intention to carry out targeted checks against the databases, they shall notify the Member State in question of those concerns without delay. The Member State in question shall take those concerns into account.

2c. The Commission shall, by 8 April 2019, transmit to the European Parliament and the Council an evaluation of the implementation and consequences of paragraph 2.

2d. With regard to air borders, paragraphs 2a and 2b shall apply for a maximum transitional period of six months from 7 April 2017.

In exceptional cases, where, at a particular airport, there are specific infrastructural difficulties requiring a longer period of time for adaptations in order to allow for the carrying-out of systematic checks against the databases without having a disproportionate impact on the flow of traffic, the six-month transitional period referred to in the first subparagraph may be prolonged for that particular airport by a maximum of 18 months in accordance with the procedure specified in the third subparagraph.

For that purpose, the Member State shall, at the latest three months before the expiry of the transitional period referred to in the first subparagraph, notify the Commission, the Agency and the other Member States of the specific infrastructural difficulties in the airport concerned, the envisaged measures to remedy them and the required period of time for their implementation.

Where specific infrastructural difficulties requiring a longer period for adaptations exist, the Commission, within one month of receipt of the notification referred to in the third subparagraph and after consulting the Agency, shall authorise the Member State concerned to prolong the transitional period for the airport concerned and, where relevant, shall set the length of such prolongation.

2e. The checks against the databases referred to in points (a) and (b) of paragraph 2 may be carried out in advance on the basis of passenger data received in accordance with Council Directive 2004/82/EC ([^E0017]) or in accordance with other Union or national law.

Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and the validity of the travel document for crossing the border, shall also be verified.

2f. By way of derogation from paragraph 2, persons enjoying the right of free movement under Union law who cross the internal land borders of the Member States for which the verification in accordance with the applicable Schengen evaluation procedures has already been successfully completed, but for which the decision on the lifting of controls on their internal borders pursuant to the relevant provisions of the relevant Acts of Accession has not yet been taken, may be subject to the checks on exit referred to in paragraph 2 only on a non-systematic basis, based on a risk assessment.

• (a) thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 6(1) and, where applicable, of documents authorising residence and the pursuit of a professional activity. This shall include a detailed examination covering the following aspects:
• (i) 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:
• (1) the SIS;
• (2) Interpol’s SLTD database;
• (3) 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 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);
• (ii) verification that the travel document is accompanied, where applicable, by the requisite visa or residence permit;
• (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;
• (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;
• (iv) verification regarding the point of departure and the destination of the third-country national concerned and the purpose of the intended stay, checking, if necessary, the corresponding supporting documents;
• (v) verification that the third-country national concerned has sufficient means of subsistence for the duration and purpose of the intended stay, for his or her return to the country of origin or transit to a third country into which he or she is certain to be admitted, or that he or she is in a position to acquire such means lawfully;
• (vi) verification that the third-country national concerned, his or her means of transport and the objects he or she is transporting are not likely to jeopardise the public policy, internal security, public health or international relations of any of the Member States. Such verification shall include direct consultation of the data and alerts on persons and, where necessary, objects included in the SIS and other relevant Union databases, and the action to be performed, if any, as a result of an alert. This is without prejudice to the consultation of national and Interpol databases;

• (b) if the third country national holds a visa referred to in Article 6(1)(b), the thorough checks on entry shall also comprise verification of the identity of the holder of the visa and of the authenticity of the visa, by consulting the Visa Information System (VIS) in accordance with Article 18 of Regulation (EC) No 767/2008;

• (bb) if the third-country national holds a long-stay visa or a residence permit, the thorough checks on entry shall comprise verification of the identity of the holder of the long-stay visa or residence permit and the authenticity and validity of the long-stay visa or residence permit by consulting the VIS in accordance with Article 22g of Regulation (EC) No 767/2008. In circumstances where verification of the identity of the holder of the long-stay visa or residence permit or of the authenticity and validity of the long-stay visa or residence permit, fails or where there are doubts as to the identity of the holder, the authenticity of the long-stay visa or residence permit or the travel document, the duly authorised staff of those competent authorities shall proceed to a verification of the document chip;

• (g) thorough checks on exit shall comprise:
• (i) 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:
• (1) the SIS;
• (2) Interpol’s SLTD database;
• (3) 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);
• (ii) verification that the third-country national concerned is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases;
• (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;
• (iv) 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;

• (h) in addition to the checks referred to in point (g) thorough checks on exit may also comprise:
• (i) verification that the person is in possession of a valid visa, if required pursuant to Regulation (EC) No 539/2001, except where he or she holds a valid residence permit; such verification may comprise consultation of the VIS in accordance with Article 18 of Regulation (EC) No 767/2008; ————— —————

• (i) 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;

• (ia) the checks against the databases referred to in point (a)(i) and (vi) and point (g) may be carried out in advance on the basis of passenger data received in accordance with Directive 2004/82/EC or with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and validity of the travel document for crossing the border, shall also be verified;

• (ib) where there are doubts as to the authenticity of the travel document or the identity of the third-country national, the checks, where possible, shall include the verification of at least one of the biometric identifiers integrated into the travel documents.

4a. Where on entry or exit, consultation of the relevant databases including the multiple-identity detector through the European search portal established by Article 25(1) and Article 6(1) of Regulation (EU) 2019/817 of the European Parliament and of the Council ([^E0018]) respectively results in a yellow link or detects a red link, the border guard shall consult the common identity repository established by Article 17(1) of that Regulation or SIS or both to assess the differences in the linked identity data or travel document data. The border guard shall carry out any additional verification necessary to take a decision on the status and colour of the link.

In accordance with Article 69(1) of Regulation (EU) 2019/817, this paragraph shall apply as from the start of operations of the multiple-identity detector under Article 72(4) of that Regulation.

This information shall be available in all the official languages of the Union and in the language(s) of the country or countries bordering the Member State concerned and shall indicate that the third-country national may request the name or service identification number of the border guards carrying out the thorough second line check, the name of the border crossing point and the date on which the border was crossed.

Article 8a

Use of self-service systems for pre-enrolling data in the EES

• (a) the travel document contains an electronic storage medium (chip) and the authenticity and integrity of the chip data are confirmed using the complete valid certificate chain;

• (b) the travel document contains a facial image recorded in the electronic storage medium (chip) which can be technically accessed by the self-service system so as to verify the identity of the holder of the travel document by comparing the facial image recorded in the electronic storage medium (chip) with his or her live facial image; 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) of the travel document.

In addition, in accordance with Articles 23(4) of the Regulation (EU) 2017/2226, where an identification in the EES is carried out:

• (a) for third-country nationals who are subject to a visa requirement to cross the external borders, if the search in the VIS with the data referred to in Article 18(1) of Regulation (EC) No 767/2008 indicates that the person is recorded in the VIS, a verification of fingerprints against the VIS data shall be carried out in accordance with Article 18(6) of Regulation (EC) No 767/2008. Where a verification of the person pursuant to paragraph 2 of this Article has failed, the VIS data shall be accessed for identification in accordance with Article 20 of Regulation (EC) No 767/2008;

• (b) for third-country nationals who are not subject to a visa requirement to cross the external borders and who are not found in the EES further to the identification run in accordance with Article 27 of Regulation (EU) 2017/2226, the VIS shall be consulted in accordance with Article 19a of Regulation (EC) No 767/2008.

• (a) third-country nationals who are subject to a visa requirement to cross the external borders shall pre-enrol in the EES through the self-service system the data listed under Article 16(1) and Article 16(2)(c) to (f) of Regulation (EU) 2017/2226 and, where relevant, the data referred to under Article 16(6) of that Regulation, and third-country nationals who are not subject to a visa requirement to cross the external borders shall pre-enrol in the EES through the self-service system the data listed under Articles 17(1)(a), (b) and (c) and 16(2)(c) of that Regulation and, where relevant, the data referred to in Article 17(1)(d) of that Regulation;

• (b) subsequently, the person shall be referred to a border guard who shall:
• (i) pre-enrol the data concerned, where it was not possible to collect all the required data through the self-service system;
• (ii) verify:
• — that the travel document used at the self service system corresponds to the one held by the person in front of the border guard,
• — that the live facial image of the person concerned corresponds to the facial image that was collected though the self service system, and
• — for persons who do not hold a visa required pursuant to Regulation (EC) No 539/2001, that the live fingerprints of the person concerned correspond to the fingerprints that were collected though the self-service system;
• (iii) when the decision to authorise or refuse entry has been taken, confirm the data referred to in point (a) of this paragraph and enter in the EES the data referred to in Articles 16(2)(a) and (b) and 18(6)(a), (b), (c) and (d) of Regulation (EU) 2017/2226.

• (a) update the data in the EES by pre-enrolling them through the self-service system;

• (b) be referred to a border guard who shall verify the correctness of the update under point (a) of this paragraph and, when the decision to authorise or refuse entry has been taken, update the individual file in accordance with Article 14(2) of Regulation (EU) 2017/2226.

Article 8b

Use of self-service systems and e-gates for the border crossing by persons whose border crossing is subject to a registration in the EES

• (a) the travel document contains an electronic storage medium (chip) and the authenticity and integrity of the chip data are confirmed using the complete valid certificate chain;

• (b) the travel document contains a facial image recorded in the electronic storage medium (chip) which can be technically accessed by the self-service system so as to verify the identity of the holder of the travel document, by comparing that facial image with his or her live facial image; and

• (c) the person is already enrolled or pre-enrolled in the EES.

Where a person is granted access to a national facilitation programme established by a Member State pursuant to Article 8d, the border checks carried out through a self-service system on entry may omit the examination of the aspects referred to in Article 8(3)(a)(iv) and (v) when that person crosses the external borders of that Member State or the external borders of a Member State which has concluded an agreement with the Member State which granted the access as referred to under Article 8d(9).

• (a) where one or more of the conditions listed under paragraph 1 are not fulfilled;

• (b) where the checks on entry or exit provided for in paragraph 2 reveal that one or several of the entry or exit conditions are not met;

• (c) where the results of the checks on entry or exit provided for in paragraph 2 put into question the identity of the person or when they reveal that the person is considered to be a threat to the internal security, public policy or international relations of any Member State or to public health;

• (d) in the case of doubt;

• (e) where no e-gates are available.

Article 8c

Standards for automated border control systems

Automated border control systems shall, to the extent possible, be designed in such a way that they can be used by all persons, with the exception of children under 12 years of age. They shall also be designed in a way that fully respects human dignity, in particular in cases involving vulnerable persons. Where Member States decide to use automated border control systems, they shall ensure the presence of a sufficient number of staff to assist persons with the use of such systems.

Article 8d

National facilitation programmes

Such third-country nationals shall be pre-vetted by border guards, by visa authorities as defined in point 3 of Article 4 of Regulation (EC) No 767/2008 or by immigration authorities as defined in point (4) of Article 3(1) of Regulation (EU) 2017/2226.

• (a) the applicant fulfils the entry conditions set out in Article 6(1);

• (b) the applicant’s travel document and, where applicable, visa, long-stay visa or residence permit are valid and not false, counterfeit or forged;

• (c) the applicant proves the need for frequent or regular travel or justifies his or her intention to travel frequently or regularly;

• (d) the applicant proves his or her integrity and reliability, in particular, where applicable, the lawful use of previous visas or visas with limited territorial validity, his or her economic situation in the country of origin and his or her genuine intention to leave the territory of the Member States before the end of the authorised period of stay. In accordance with Article 25 of Regulation (EU) 2017/2226, the authorities referred to in paragraph 3 of this Article shall have access to the EES to verify that the applicant has not previously exceeded the maximum duration of authorised stay on the territory of the Member States;

• (e) the applicant justifies the purpose and conditions of the intended stays;

• (f) the applicant possesses sufficient means of subsistence both for the duration of the intended stays and for the return to the country of origin or residence, or that the applicant is in a position to acquire such means lawfully;

• (g) the SIS is consulted.

In the case of an extension the Member State shall reassess every year the situation of each third-country national who is granted access to the national facilitation programme in order to ensure that, based on updated information, that third-country national still meets the conditions laid down in paragraph 4. This reassessment may be performed when border checks are carried out.

Border guards may carry out the verification of the third-country national benefiting from the national facilitation programme on entry pursuant to Articles 8(3)(a) and (b) and on exit pursuant to Article 8(3)(g) without comparing biometrics electronically but by comparing the facial image taken from the electronic storage medium (chip) and the facial image in the third-country national's individual EES file with that third-country national’s face. Full verification shall be carried out at random and on the basis of a risk analysis.

The means of subsistence for the intended stays shall be assessed according to the duration and the purpose of the envisaged stay or stays and by reference to average prices in the Member States concerned for board and lodging in budget accommodation, on the basis of the reference amounts set by the Member States in accordance with Article 39(1)(c). Proof of sponsorship, private accommodation, or both, may also constitute evidence of sufficient means of subsistence.

The examination of an application shall be based, in particular, on the authenticity and reliability of the documents submitted and on the veracity and reliability of the statements made by the applicant. If a Member State responsible for examining an application has any doubts about the applicant, the applicant’s statements or supporting documents that have been provided, it may consult other Member States before any decision on the application is taken.

Article 9

Relaxation of border checks

The decision to relax checks shall be taken by the border guard in command at the border crossing point.

Such relaxation of checks shall be temporary, adapted to the circumstances justifying it and introduced gradually.

3a. Where it is technically impossible to enter data in the Central System of the EES or in the event of the failure of the Central System of the EES, all of the following provisions shall apply:

• (i) by way of derogation from Article 6a of this Regulation, the data referred to in Articles 16 to 20 of Regulation (EU) 2017/2226 shall be temporarily stored in the National Uniform Interface as defined in Article 7 of that Regulation. Where this is not possible, the data shall be temporarily stored locally in an electronic format. In both cases, the data shall be entered in the Central System of the EES as soon as the technical impossibility or failure has been remedied. The Member States shall take the appropriate measures and deploy the required infrastructure, equipment and resources to ensure that such temporary local storage may be carried out at any time and for any of their border crossing points. Without prejudice to the obligation to carry out border checks under this Regulation, in the exceptional situation that it is technically impossible to enter data in the Central System of the EES and in the National Uniform Interface, and it is technically impossible to temporarily store the data locally in an electronic format, the border guard shall manually store entry/exit data in accordance with Articles 16 to 20 of Regulation (EU) 2017/2226, with the exception of biometric data, and shall affix an entry or exit stamp in the travel document of the third-country national. That data shall be entered in the Central System of the EES as soon as technically possible. Member States shall inform the Commission, in accordance with Article 21(2) of Regulation (EU) 2017/2226, of the stamping of travel documents in the event of the exceptional situations referred to in the second subparagraph of this point;

• (ii) by way of derogation from Article 8(3)(a)(iii) and (g)(iv) of this Regulation, for nationals of third countries holding a visa as referred to in Article 6(1)(b), where technically possible, the verification of the identity of the holder of the visa shall be carried out by consulting directly the VIS in accordance with Article 18 of Regulation (EC) No 767/2008.

Article 10

Separate lanes and information on signs

Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States which do not apply Article 22 at their common borders. The signs bearing the indications set out in Annex III shall be used if Member States provide separate lanes at those borders.

Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border.

Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III to this Regulation.

All other persons shall use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III.

The indications on the signs referred to in the first, second and third subparagraphs may be displayed in such language or languages as each Member State considers appropriate.

The provision of separate lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs.

Member States may vary the indications on those signs where appropriate in the light of local circumstances.

3a. Where Member States decide to use e-gates, self-service systems or automated border control systems, they shall use the signs provided for in part D of Annex III to identify the respective lanes.

3b. Where Member States decide to establish a national facilitation programme in accordance with Article 8d, they may decide to use specific lanes for the third-country nationals benefiting from such a national facilitation programme. They shall use the signs provided for in part E of Annex III to identify the respective lanes.

Article 11

Stamping of travel documents

Article 12

Presumption as regards fulfilment of conditions of duration of short stay