by Beatrice FRAGASSO (Free-Group Trainee)
The European Commission, on 16 November 2016, has put forward a proposal (COM(2016) 731, 16.11.2016, 2016/0357(COD)) establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulation (EU) (EU) 2016/399 (the ‘Schengen Borders Code’), (EU) 2016/794 and (EU) 2016/1624.
This proposal is being negotiated as part of the Smart Border Package and aims to ensure a high level of internal security and free movement of persons in the Schengen area. The Commission didn’t conduct an impact assessment but published a feasibility study on ETIAS, conducted between June and October 2016.
The system designed by the proposal would require also visa-exempt travellers to undergo a risk assessment with respect to security, irregular migration and public health risks prior to their arrival at the Schengen borders. This assessment would be carried out by means of cross- checking applicant’s data submitted through ETIAS system against other EU information systems, a dedicated ETIAS watch list and screening rules. This process will result in granting or denying an automated authorization for entering the EU.
Further information from the European Parliament Research Service are available HERE
The current situation
Currently, both visa-obliged and visa-exempt travelers are subject to border controls when entering the Schengen area. According to Regulation (EU) 2016/399, both categories of travelers need to comply with the conditions for short-term stay, which include not being a threat to public order and security, holding valid travel documents, justifying the purpose and conditions of the intended stay, not being the subject of any alert in the SIS for the purpose of refusing entry, and having sufficient means of subsistence.
For visa holders the compliance with this conditions is assessed at the time on the request for a visa and relevant data are stored in visa information system (VIS) which can be consulted by law enforcement authorities for the purposes of combatting serious crime and terrorism.
However, no such advance information can be currently obtained for visa-exempt nationals arriving at the Schengen external borders. This means that border guards need to decide on allowing or refusing access to the Schengen area without prior knowledge regarding any security, migration or public-health risks associated with visa exempt travelers.
This is particularly true for visa-exempt travelers arriving by land, as the only source of information about them is their travel document presented at the time of crossing the EU external border.
The situation is different for passengers arriving by air as Council Directive 2004/82/EC obliges carriers to communicate all passenger data, known as ‘advance passenger information’ (API), including name, date of birth, passport number and nationality at the time of the check-in for inbound flights to the EU. Another Directive (EU) 2016/681 on the use of passenger name record data (the ‘PNR Directive’) collect 19 types of personal data already at the time of the flight reservation and obliges airlines to hand over to EU MS authorities their passengers’ data linked with the travel reservation (which includes travel dates, travel itinerary, ticket information, frequent flyer data, contact details, baggage information, credit card and general remarks stored in the Airline files).
For visa-exempt passengers arriving on foot or by car, bus or train, no such comparable advance information is available prior to their arrival.
The changes the proposal would bring
Schengen Border Checks
Prior to arriving in the Schengen area, all carriers will verify if visa-exempt third-country nationals have a valid ETIAS travel authorization, without which boarding will not be authorized. A valid ETIAS travel authorization, should be obtained in advance of arrival at a Schengen border crossing point, and this will be a precondition for entering the Schengen area. However, border guards at the external Schengen borders will still take the final decision to grant or refuse entry according to the Schengen Borders Code.
As it is currently the case for visa-exempt travelers to Canada “ETA”, USA “ESTA” and Australia “ETA” who have to ask for a travel authorization also travelers wanting enter the Schengen area will have to fill in an online application by providing their biographical and passport data, contact details, information on intended travel, and answers to background questions relating to public health risks, criminal records, presence in war zones and previous refusals of entry or an order to leave the territory of a Member State.
At the same time, an application fee of €5, which will go to the EU budget, will be mandatory for all applicants above the age of 18 before their application can be processed.
Processing of applications
The automated processing will be carried out by the central system, which will be in charge of checking data provided by applicants against security databases, such as the VIS, Europol data, the SIS, Eurodac, the Interpol SLTD database , the European Criminal Records Information System (ECRIS) and the planned future EU “Entry-Exit” system (currently negotiated between the EP and the Council). Personal Data will also be screened against a ETIAS “watch list” (where people suspected to have committed, or be likely to commit a criminal offence will be listed by the EU MS) and against specific risk indicators (irregular migration, security or public- health risks) which will be defined in consultation with an ETIAS screening board.
In the case of a positive hit after the automatic processing, that personal application will be further assessed manually by operators in the ETIAS central unit and in the national units.
In case no risks has been detected a positive response, in a form of a travel authorisation valid for five years (or until the expiry of the passport) will be delivered. In the case of a refusal, a justification will be given and applicants will have the right to appeal.
Authorisation will be revoked or annulled when the conditions for its issuance are no longer met, particularly when it is believed that it was fraudulently obtained or when a new alert for refusal of entry is created in the SIS.
ETIAS will consist of an information system, a central unit and national units.
The information system will be designed for processing applications and will be interoperable with other security databases that ETIAS will be connected. The new system will be managed by the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice (eu-LISA).
The central unit will be part of Frontex (the European Border and Coast Guard Agency) and will ensure that the data stored in the application files and the data recorded in ETIAS are correct and up to date. Where necessary, it will also verify travel authorisation applications whenever there are doubts regarding the identity of an applicant in cases where the latter’s data produced a match (a ‘hit’) against the stored data during automated processing.
The national units will be responsible for making the risk assessment and deciding on travel authorisation for applications rejected by the automated application process. They will also issue opinions when consulted by other national units, and act as a national access point for requests for access to the ETIAS data for law enforcement purposes related to terrorist and other serious criminal offences.
The role of Europol
Europol will be involved in ETIAS in several ways.
Firstly, Europol’s data related to criminal offences, convictions or potential threats will be compared to those provided by applicants for an ETIAS authorization.
Secondly, Europol will help define ETIAS screening rules by participating in the ETIAS screening board and managing the ETIAS watch list.
Thirdly, Europol will be consulted by the ETIAS national units in case of a match with Europol data during the ETIAS automated processing.
And finally, Europol will be able to consult personal data in the ETIAS central system for the prevention, detection or investigation of terrorist offences or other serious criminal offences (as provided by its mandate).
The Council’s position
In a document om March 17, 2017 authored by the Maltese Presidency of the Council of the EU and covering also the other legislative pending measures connected to ETIAS, a number of compromises are suggested: The Presidency identified other key issues that needed to be clarified and decided upon before revised text proposals could be submitted to delegations. The Presidency therefore prepared a discussion paper on which delegations were invited to comment. The issues outlined by the Presidency related to the division of competences between Frontex and the Member States, the definition of ‘responsible Member State’ as regards the decision to grant a travel authorisation, and the duration of a travel authorization […] With respect to the definition of the ‘responsible Member State’, delegations were divided into two groups, one in favour of the Member State of first entry, as proposed by the Commission, while the other stressed the key role played by the Member State at the origin of an alert triggering a “hit”. The following issues are the “object of extensive debates”:
“– the scope of the regulation;
– the ETIAS watchlist and the screening rules;
– the access to the ETIAS data;
– the interoperability of ETIAS with other systems and databases.”
More recently the Council Presidency has also submitted some possible compromise proposals to the other delegations (docs 8579/17 and 8584/17) and it is more than likely that the EP will be under pressure to launch the negotiations for a first reading agreement on this subject.
The European Parliament position (Libe Committee Debate)
On the EP side works are still at an initial phase (SEE OEIL DOSSIER HERE). The LIBE Committee has been informed for the first time by a Commission representative (Belinda Pyke) on 22 March 2017. It has been stressed that the purpose of the proposal is to improve internal security and border management and that policy visa liberalization is essential in the system. This proposal will contribute to the security of the Schengen area because as any risks will be identified prior to departure. Due to the political pressure of the European Council and the very tight deadlines the Commission did not have the time to conduct an impact assessment although it would have been desirable; however, the Commission published a detailed study on the subject. The Commission representative made reference to the comparable systems in Australia, Canada and USA and declared that the ETIAS system will take stock of the experience of these countries by overcoming their weaknesses and mirroring the strengths of these systems.
Firstly, request authorization will be easy and cheap. Applicants will receive rapidly (within 12 hours) a positive feedback and those without authorization will save travel costs. The ETIAS system provides an automatic control: such control will allow to verify that the criminal record is clean. These checks will take place on the basis of SIS, Interpol, ECRIS, Eurodac.
The ETIAS central unit will compare the data in the database and the identity of the applicant and the rest of the operations will be managed by the national units.
The decision of the unit will be delivered within 72 hours, unless it will be necessary to gather special information (in this case it will be possible an extension to a two-week maximum).
ETIAS will be financially self-sustaining, thanks to the tax that will be paid by applicants. It is estimated that the costs for developing it will amount to €212.1 million, while the average annual operations costs, to be covered by the revenue from fees, will be €85 million.
The data will be protected from abuse and the information may be given to law enforcement only in the case of very serious crimes (this possibility also exist for Eurodac).
The EP rapporteur Kinga Gal (PPE – Hungary) was not present at the debate, but a colleague read her statement. The rapporteur argues that the text is of great importance and it will cover three categories of passengers
1) European Citizens or persons enjoying the right of free movement under Union law
2) Third-country nationals under visa obligation
3) Third-country nationals without visa obligation
From now until 2020 the countries without visa obligation will increase. For third-country nationals without visa obligation it’s difficult to gather information; it’s therefore necessary to create an information system well established in legal terms, so as not to put excessive burdens for Member States.
The debate that followed, however, showed controversial elements in the proposal, criticized by MEPs.
Firstly, almost all the MEPs who spoke remarked the necessity of an impact assessment, finding it unacceptable yet another lack of it. An issue of such importance can not be studied without taking into account an impact assessment: the urgency can not justify such a lack.
Birgit Sippel (S&D – Germany), for instance, affirmed that she’s tired to listen to the Commission affirming that it’s necessary to adopt better legislation and that impact assessments are not conducted anymore because of urgency. EU needs to regulate well, not in a hurry: this rush to legislate, then, does not make sense if the execution by the Member States is so slow. She also remarked that one of the problems in this proposal is that the form requires a bit of everything and there is the risk that if an applicant forgets a small offense did at 15 years old he cannot enter.
The shadow rapporteur Gérard Deprez (ALDE – Belgium) wondered what professional criteria will be provided for ETIAS units and how it will be possible to apply Article 7 of the Schengen Code, because compulsory systematic checks for everybody (as provided in that Article) would have a significant impact on traffic at the border. Deprez considered that the term of 72 hours is reasonable whereas he considers excessive the term of validity of five years, because in the course of five years many things can change in a person’s life. Also foreign experiences in fact suggest different solutions: in US visa is valid for one year and in Australia for two years. Also with regard to rates, Deprez is at odds with the proposal: 5 euro is a low price if compared to the prices of US (14 euro) and Australia (20 euro). According to Deprez, then, in the request the applicant should indicate the member state where he would like to go. The proposal, in addiction, should define a better balancing of criminal convictions. For example, prison sentences of less than one year should not be an obstacle to the granting of authorization.
It may also emerge a serious problem for air traffic. It is estimated that for a plane carrying 300 people controls may last from four hours and a half to seven hours and a half. The controls are certainly a necessary corollary for visa liberalization, but the parliament should find more efficient solutions.
On behalf of DG HOME of the European Commission Mrs Belinda Pike replied that the validity of five years would be reasonable. Of course it is noted that in the case in which the person commits an offense such information is immediately acquired in the system. Contrary to what Deprez stated, then, the cost is not too low, but it’s instead sufficient to ensure the smart management of borders. It is a fee that will cover the costs and ensures a small gain. In the US half of the fee (therefore, 7 euros) is invested in the tourism sector. Do not pay anything on the other hand would be a huge burden on the EU budget.
Belinda Pike finally stressed that the screening does not immediately lead to the rejection of the request, but simply involves manual handling of the request.
Marie – Christine Vergiat (GUE/NGL – France) and Bodil Valero (Greens/EFA – Sweden) highlighted that visas are returned, albeit with a different name (authorization). According to Marie – Christine Vergiat, then, this proposal does not promote cooperation between member states, it is repressive and attacks the fundamental rights, like others in this area of “smart” borders. Security and immigration are matters to be addressed in different texts, because adhere to different problems. The fact that some people should be identified through a profiling system also raises an ethical problem.
Bodil Valero remarked the privacy-issue. People will also provide information on education and health and Greens/Efa group would like to receive explanations about what is the reason for these provisions: perhaps the Commission’s intention is to gather information that cannot be collected in other ways. Furthermore, the 5-year period envisaged for data stocking is too long. She underlined that also the EDPS (European Data Protection Supervisor) has taken a fairly critical position on some of the elements of the proposal.
In his opinion, in fact, the EDPS states, among other things, that the establishment of ETIAS would have a significant impact on the right to the protection of personal data, since various kinds of data, collected initially for very different purposes, will become accessible to a broader range of public authorities (i.e. immigration authorities, border guards, law enforcement authorities, etc). For this reason, the EDPS considers that there is a need for conducting an assessment of the impact that the Proposal will entail on the right to privacy and the right to data protection enshrined in the Charter of Fundamental Rights of the EU, which will take stock of all existing EU-level measures for migration and security objectives.
Last but not least, during a TRAN (transport and tourism) committee on Wednesday 22 March, different speakers representing the tourist sector expressed concerns about the costs generated by the ETIAS in the tourism sector. However, the TRAN Committee decided not to give an opinion to LIBE.
As soon as the two co-legislators will have defined their position a trilogue could be launched which can bring to an agreement on first reading. As things currently stay an agreement will probably go hand in hand with the other “ENTRY/EXIT” legislative proposal.