EU COMPASS : the “smart borders” package

By Fern Bowles (FREE Group Trainee)

Background

The idea of an centralised and automated system registering the entry and exit out of a territory has been advocated since September 11 by the US when they subsequently introduced the US-Visit and ESTA system to pre-register would be visitors before their entry until their exit.

This concept, as well as the Australian SmartGate and Hong Kong e.channel[1], has been taken in account at the EU level in the Integrated Border Management system that has been developed since 2006, then advocated  by the Commission since 2008 with the idea of interconnecting at EU level large databases dealing with the movement of Third Country Nationals (TCN) such as VIS – SISII.  In the meantime, awaiting an EU initiaitve already 13 EU or Schengen countries[2] have already launched and operate automated border-crossing/entry-exit schemes, in some cases combined with similar Registered Travel Passengers (RTP) systems. (see EDPS opinion. Art 29 Working Party)

In 2008 and 2012 the European Commission produced Impact Assessments on border management in the European Union. This was then progressively pushed after the Lisbon Treaty by the European Council within the context of the Stockholm Programme (2009). Finally in 2011 the  European Council’s conclusions (June 2011) called for the Smart Borders initiative, and the European Commission published a first Communication announcing incoming legislative initiatives.

The EU Commission “Smart Borders” package

On 28th February 2013 the Commission adopted a smart borders “package” composed of four documents :

– a general strategic Communication and three legislative proposals founded on art. 74 and 77 of the TFEU (Administrative cooperation and Borders policy – Schengen acquis):

–  an Entry/Exit System (EES) which will record the time and place of entry and exit of third country nationals travelling to the EU. The system will calculate the length of the authorised short stay in an electronic way, replacing the current manual system, and issue an alert to national authorities when there is no exit record by the expiry time. In this way, the system will also be of assistance in addressing the issue of people overstaying their short term visa.and

– a Registered Traveller Programme  (RTP) which will allow frequent travellers from third countries to enter the EU using simplified border checks, subject to pre-screening and vetting. The RTP will make use of automated border control systems (i.e. automated gates) at major border crossing points such as airports that make use of this modern technology.

– a Proposal amending the Schengen Borders Code (Regulation (EC) No 562/2006) to integrate the EES and RTP in the general legislative borders framework.

The total estimated costs for EES and RTP have risen from €100 million in the European Commission’s 2008 first impact assessment, to €1,335 million (€1,3 billion) in 2011[3] to be verified the initial cost from the maintenance cost

A controversial start..

During the examination of the first Smart Borders Package, completed in February 2014, the Council and the European Parliament (EP) voiced technical, operational and cost concerns, mainly related to the overall feasibility of the proposed new systems and of some of their features.  An European Parliament’s study (2012)  made also reference to comparable experience in the US and noted that even the “US-VISIT programme has been termed ‘high risk’ by the US Government Accountability Office. They have consistently reported concerns about the programme’s inefficient management, high costs, missed benchmarks, lack of result measures, and absence of transparency and accountability”[4] Problems have also appeared in the EU. In the UK, the introduction of new procedures involving IT tools for border checks resulted in 2011, into a crisis leading to the dismantlement of the UK Border Agency. These procedures resulted in increased waiting times at the border, further workload for frontline border officials, leading to the lifting of checks at some of the busiest ports of entry into the country (and incidentally, in the case of Heathrow, into the EU). In the UK, the introduction of new procedures involving IT tools for border checks has resulted in 2011 in a crisis leading to the dismantlement of the UK Border Agency. These procedures resulted in increased waiting times at the border, further workload for frontline border officials, leading to the lifting of checks at some of the busiest ports of entry into the country (and incidentally, in the case of Heathrow, into the EU).

Re-launching the EU Smart Border Project

In order to further assess the technical, organisational and financial impacts of the various possible ways to address these issues, the Commission initiated a proof of concept exercise aimed at identifying options for implementing the Smart Borders Package. This exercise consisted of two stages:

A Commission-led Technical Study aimed at identifying and assessing the most suitable and promising options and solutions. Based on this Study, the options and solutions to be tested through a Pilot project should be identified by the end of 2014. In October 2014, the first stage of the new Commission analysis was completed with the delivery of the Technical Study (see the executive summary ) and Costs Study.

A Pilot project to be entrusted to the Agency for the Operational Management of large-scale IT Systems in the area of Freedom, Security and Justice (eu-LISA), aimed at verifying the feasibility of the options identified in the Technical Study and validating the selected concepts for both automated and manual border controls. The “Pilot” will be completed during 2015 .

The EES  in practice:

The EES aims to “replace the current practice of calculation of authorised stay based on stamps in passports with an electronic registry of the dates and places of entry & exit for short stays”. This procedure is currently practiced on a national level, however there isn’t the possibility of verifying if the exit of the TCN took place within another Schengen country. The aim is to achieve a more “accurate and reliable calculation of authorised stay” done at a pan-Schengen level.

Personal data and retention period:

The use of personal data (alphanumeric data) is to be used initially with biometric data being brought in after a three year period. Proposed retention of information for 181 days (6 months), as stipulated in Article 20 of the Commission’s proposal. However the retention of data for a five year period has been proposed in regards to ‘overstayers’. The EDPS has underlined concerns over the necessity and proportionality since the beginning of the Commission’s proposal[5] and questioned the justification of this retention period.[6]

The RTP in practice 

It is an alternative border procedure at the EU level for third country nationals. This initiative highlights the evolution from a ‘country-centric’ to a ‘person-centric’ approach i.e. frequent travellers who has travelled in the past could travel more easily than someone who has never travelled to a Schengen destination country before.  The idea of a ‘person-centric’ approach to the smart border package is notably relevant in the midst of increased security issues within the EU.

The main logic therefore is the pre-registration of third country national passenger information before travel (SBC entry requirements i.e. purpose of stay in EU, whether person has sufficient means of subsistence, intention to return to country of origin, accommodation details, booking confirmation, return travel details flight/ferry/train). Facilitate border guards work at border.

The Registered Traveler would be issued with a token (machine-readable card with a unique identifier e.g. application number) and this would be used on arrival and departure at the border. The traveller would pass through an automated gate.

Key purpose: to offer simplified, automated border checks to non-EU nationals/third party travellers complying with certain criteria to allow frequent travellers to enter the EU with simplified border checks (i.e. business travellers, family members etc.),  to make it possible to identify overstayers (people who entered the EU lawfully, but have stayed longer than they are entitled to)[7].

Personal data and retention period: The RTP will be based on a centralised system containing biometric data and a token specific to each traveller. Up to a 5 year period.

Legal aspects and Treaty Base: Schengen Borders Code: A.7 EU and non-EU nationals are subject to checks at external borders.  Regulations based on Article 77 of the TFEU[8].

Law Enforcement Access: As far as the access to Law Enforcement Authorities is foreseen it has to be verified whether the legal basis dealing with police cooperation should not also be taken in account. Similar to the Eurodac case, the European Parliament and the Council will have to endorse Member states’ police force and Europol access to the EES/RTP centralised database.

Subsidiarity and Proportionality Principle: Article 5 of the Treaty on the European Union, Protocol No. 2 on the application of the principles of subsidiarity and proportionality attached to the Treaty on the Functioning of the European Union (TFEU).

Fundamental Rights: Implications concerning Article 7 on the Respect for private and family life and Article 8 on the Protection of personal data (Charter of Fundamental Rights of the EU) and the Right to an effective remedy (Article 47 of the Charter) Fundamental right to privacy and data protection, in compliance with Article 8 of the European Convention on Human Rights (ECHR)

Data Protection: Directive 95/96/EC of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

Type of Procedure: Ordinary legislative procedure (so called “codecision” procedure)

Type of act :  Regulation

Context:/ REFERENCES : Frontex Agency (2004-2011), Visa Information System (VIS) 2004, Schengen Borders Code adopted March 2006, progressive development of Integrated Border Management IBM[9] (new technologies),  European Borders Fund encompassed within the Internal Security Fund[10] (since 2011) Commission publishes 2008 ‘border package’, Stockholm Programme Dec 2009 (sets out EU’s priorities in area of freedom, security and justice), Council Conclusions June 2011, Schengen Information System II (SIS II) 2013, Impact Assessment RTP (2013)

Civil Society reactions : Meijers Committee on Smart Borders proposal: On May 3, 2013, the Standing committee of experts on international immigration, refugee and criminal law [Meijers Committee] advised the members of the European Parliament to vote against the Smart Borders proposals and expressed deep concerns with respect to elements linked to the protection of personal data. European Commission’s ‘smart borders pilot’ 2014 is a feasibility study conducted by EU-LISA

Bibliography/Supplementary sources

European Commission: News: ‘Smart Borders’: enhancing mobility and security

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Smart borders – options and the way ahead, Brussels, 25.10.2011 COM(2011) 680 final

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an entry/exit system to register entry and exit data of third-country nationals crossing the external borders of the Member States of the European Union, SWD/2013/047 final

Council of the European Union

Approach for the way forward on the Smart Borders Package, Brussels, 4 February 2014 5828/14,

European Parliament

Fact Sheets on the EU, Management of the external borders.

(EPRS) European Parliament Research Service (2013) Smart Borders Package. European Parliament (2013) IMPA Ex-Ante Impact Assessment, Initial appraisal of a European Commission Impact Assessment, Smart Borders Package: European Commission proposal on the entry/exit data of third-country nationals crossing the external borders of the EU. European Parliament Study (2012) , Directorate-General for Internal Policies, Policy Department C Citizens’ Rights and Constitutional Affairs, Justice, Freedom and Security,  Evaluating current and forthcoming proposals on JHA database and a smart borders system at EU external borders

Other sources

Bigo, S. Carrera, B. Hayes, N. Hernanz, J. Jeandeboz, (2012) Justice and Home Affairs Databases and a Smart Borders System at EU External Borders – An Evaluation of Current and Forthcoming proposals, CEPS Paper in Liberty and Security in Europe No. 52, in http://www.ceps.eu, 4 ss.

EU Observer (2015) Nikolaj Nielsen, Virtual biometric frontier awaits travellers to EU accessed at EU Observer

Free Group (2013) European “Smart Borders” project : negative opinion of the Meijers Committee

Jones, C. (2013). Analysis Smart Borders: fait accompli. [online] Statewatch.org.

NOTES

[1] p64 http://ec.europa.eu/transparency/regdoc/rep/2/2008/EN/2-2008-153-EN-1-0.Pdf

[2] Bulgaria, Estonia, Spain, Cyprus, Latvia, Lithuania, Hungary Malta, Poland, Portugal, Romania, Slovakia, and Finland. European Commission proposal 2013 p.2

[3] European Parliament Study, Jeandesboz, Bigo, Hayes, Simon (2012)

[4] European Parliament Study (2012) , 9.

[5] Article 29 Data Protection Working Party (2013) EDPS http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2013/wp206_en.pdf

[6] EDPS Opinion (2013) p.18

[7] European Parliamentary Research Service ‘Smart Borders’ available at http://epthinktank.eu/2013/06/13/smart-borders-package/

[8] Article 77 (TFEU) 1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders.

[9] p2 http://ec.europa.eu/dgs/home-affairs/doc_centre/borders/docs/1_en_act_part1_v14.pdf

[10] Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.150.01.0143.01.ENG

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