5-d2-3-euwidelegalandethicalreviewreport-redacted
Dieses Dokument ist Teil der Anfrage „iBorderCtrl project documentation“
D2.3 EU wide legal and ethical review report
5 Legal Framework on Border Controls
This part of the deliverable deals with the identification and synopsis of potentially relevant laws
and policies for the functionalities of the iBorderCtrl toolkit.
5.1 International Public Law
International Public Law concerns the relation between states on an international level. As this
involves a potentially huge number of different stakeholders, regulations in this field do not
usually provide detailed rules, but rather abstract principles. At the same time, International
Public Law is crucial to ensure a proper law enforcement and crime prevention, especially when
there is a cross-border dimension. Cross-border crime requires the cooperation of authorities
from all affected countries. The same applies to data protection, as data flows and the processing
of personal data are not always restricted to national borders. Consequently, the International
Public Law might provide sources of regulations that can be relevant within the scope of
iBorderCtrl.
5.1.1 Council of Europe (CoE)
The major data protection instrument established by the CoE is Convention 108,27 dating back to
1981, but already then establishing many of the data protection principles that are common today.
For example, Convention 108 introduced in Article 2 a definition of “personal data” as “any
information relating to an identified or identifiable individual,” which is very similar to the latest
definition of personal data in the GDPR and Directive 2016/680/EU. Likewise, the concepts of
“lawful processing,” “purpose limitations,” “data minimization,” “accuracy” and “storage limitation
can be found in Article 5 of the Convention, and the need for data security in Article 7. This
Convention has shaped European data protection law for more than three and a half decades and
therefore, remains a very relevant source. Most importantly, the Convention applied to data
procession for law enforcement and policing purposes already more than 20 years before any
such rules were anchored in EU legislation such as 2008/977/JHA, and now with 2016/680/EU.
More importantly, in 1987 the CoE added to this legal framework Recommendation R (87) 15
addressing the use of personal data in the police sector.28 Both instruments have been
groundbreaking in governing the use of personal data in the police and law enforcement sector
on international, and especially, on a European level. As the aforementioned Convention and
Recommendation are a good indicator how data protection in the field of law enforcement and
police work developed, and at the same time are the root of the following legislation, they might
be relevant for iBorderCtrl.
27 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data,
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168
0078b37 .
28RECOMMENDATION No. R (87) 15 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
REGULATING THE USE OF PERSONALDATA IN THE POLICE SECTOR,
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168
04e7a3c .
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5.1.2 Prüm Convention
The Prüm Convention29 (Treaty of Prüm or Schengen III) was concluded on the basis of
international public law and therefore, does not belong to the EU legal system. However, with the
Council Decision 2008/615/JI, the measures of the Treaty were included in EU law.30 With the
Treaty of Prüm, the European states decided on the stepping up of cross-border cooperation,
particularly in combating terrorism, cross-border crime and illegal migration. Since not all
provisions of the Prüm Treaty have been adopted, only the joint measures are taken into account
here.
The Council Decision mainly regulates the automated exchange of information for predefined
events, e.g. for the purpose of fighting terrorism, as well as regarding other forms of cross-border
police cooperation. This includes provisions for:
the automated access to DNA profiles, dactyloscopic data, and certain national vehicle
registration data;
supply of data in relation to major events;
supply of information in order to prevent terrorist offences;
other measures for stepping up cross-border police cooperation.
The infrastructure is set up and operated at the national level. The authorities of other states do
not have direct access to the data; rather the databases work with a hit / no-hit system. In Section
6, the states agreed on a common level of data protection, which at least should be on the level of
the CoE Convention 108 described above. As the exchange of information is a crucial aspect both
of the Prüm Convention as well as for iBorderCtrl, understanding the legal framework as
stipulated in the Prüm Convention will help to outline the requirements that should be applied to
iBorderCtrl.
5.1.3 UNHCR Convention and Protocol Relating to the Status of Refugees
The UNHCR Convention and Protocol relating to the Status of Refugees (Geneva Conventions on
Refugees)31 was established in 1951 by the United Nations. The Convention contains several
specific rules on the status of refugees, such as a definition who is a refugee, the rights of
individuals who are granted asylum and the responsibilities of nations that grant asylum. While
the provisions are not related to data protection, the Convention, however, remains one of the
most important, if not the most important international instrument on refugee rights. The rules
laid down in the convention are not specific to a border-crossing scenario involving the use of a
system such as the iBorderCtrl system. However, to apply to refugee rights in all scenarios equally,
respecting these rights, of course, is essential for iBorderCtrl: According to Article 3 (b) of the
Schengen Borders Code, border checks have to be performed without prejudice to refugees. As a
result, the iBorderCtrl system must ensure that any rights assigned to refugees under no
circumstances can be negatively impacted by the use of the system and decision-making based
upon such use.
29 http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010900%202005%20INIT .
30 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008D0615 .
31 http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-
refugees.html .
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5.1.4 INTERPOL (FIND & MIND)
INTERPOL offers various databases that may be accessed by front-line law enforcement agencies
such as border police.32 Access to relevant databases is also stipulated in Article 8 of the Schengen
Borders Code (e.g. Article 8 (2)). It has to be noted, though, that INTERPOL itself does not enact
any laws, but fosters the collaboration of law enforcement agencies and the exchange of
information on an international level. The processing of data through INTERPOL channels shall
be done exclusively in the INTERPOL Information System to which INTERPOL’s Rules on the
Processing of Data33 apply. Therefore, interfaces between the iBorderCtrl toolkit and INTERPOL
databases have to offer an adequate level of data protection in order to ensure compliance with
the aforementioned rules. In addition, data should be processed only for the purposes outlined in
the rules.
5.2 European Law
The European legal framework consists of several layers, each of them having different aims and
functions. The Primary Law, such as the Treaty on the Function of European Union (TFEU) for
instance, lays down basic principles for the EU legislation and therefore constitute the basis for
the Secondary Law. In this regard, the EU legal framework contains various acts that may impact
border crossings and therefore be within the scope of iBorderCtrl. To this extent, EU Regulations
apply directly to all Member States and therefore become applicable law without the need for any
further steps (such as an implementation into national law). In contrast, Directives have to be
implemented into national law by the Member States. Implementations, as well as any other legal
issues arising with regard to EU legislation, are subject to the jurisdiction of the Court of Justice of
European Union (CJEU). Last but not least, soft laws such as the European Commission
Recommendations or ENISA Recommendations can fill regulatory gaps without having a binding
effect.
The following section will focus on the different legal acts of the EU that might be relevant for
iBorderCtrl, separated into Primary Law, Schengen Legislation (Secondary Law and Soft Law), as
well as Data Protection and Data Security regulations that could be apply to iBorderCtrl as well.
5.2.1 European Treaties and Fundamental Rights
Fundamental rights are highly valued in Europe, and some instruments and mechanisms have
been put in place to promote, protect and fulfill these rights which are enforceable and applicable
in border control activities. As such, many legislation regulating border control activities
expressly acknowledge the need to respect and promote fundamental rights. More importantly,
the Treaties that establish the EU acknowledge that the Union is founded on the values of respect
for human dignity and human rights, among other things. As well, the Council of Europe’s main
objectives includes protecting human rights.
However, interactions between border guards and third country nationals coming into the EU
could trigger fundamental rights issues. As the CJEU stated in Zakaria, “it must be noted that
border guards performing their duties, within the meaning of Article 6 of Regulation No
32 For further details, see D2.1, chapter 3.1.7 INTERPOL FIND.
33Available at: https://www.interpol.int/Media/Files/Legal-material/Reference-
Documents/INTERPOL%E2%80%99s-Rules-on-the-Processing-of-Data .
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562/2006, are required, inter alia, to fully respect human dignity.”34 Thus, apart from specific
immigrations laws, activities at the border crossings are equally subject to the rules that respect
and promote fundamental rights.35 Regulation 1168/2011, for example, emphasizes the
importance of fundamental rights during border controls:
This Regulation respects the fundamental rights and observes the principles recognised in
particular by the TFEU and the Charter of Fundamental Rights, notably the right to human
dignity, the prohibition of torture and of inhuman or degrading treatment or punishment,
the right to liberty and security, the right to protection of personal data, the right to asylum,
the principle of non-refoulement, the principle of non-discrimination, the rights of the child,
and the right to an effective remedy.36
The 2014 report of the European Union Agency for Fundamental Rights (FRA) on Fundamental
rights at land borders equally reiterated the need for observing fundamental rights at the border
posts.37 The following instruments highlight EU fundamental rights provisions that are relevant
for border controls and the interplay between certain fundamental rights and effective border
control during the two stages of iBorderCtrl application will be considered in the legal analysis in
Section 6 below. The following instruments will be particularly important for the interpretation
of secondary laws such as the Schengen Acquis, therefore being of high relevance for iBorderCtrl.
5.2.1.1 The Treaties of the EU (TEU)
The TEU is one of the founding instruments of the EU. As earlier mentioned, the TEU stipulates in
its Article 2 the values of respect for human dignity and human rights among the values upon
which the EU is founded. It also recognises the rights, freedoms and principles set out in the
CFREU,38 thereby giving the Charter the same legal value as the Treaties. Additionally, the Treaty
provides that EU shall accede to the ECHR and that fundamental rights as guaranteed by the
Convention and the constitutional traditions common to the Member States shall constitute
general principles of EU law.39 A reference to human rights and fundamental freedoms is also seen
in the provisions on the Union’s external actions on the international scene.40 Regarding external
border controls, asylum, immigration and the prevention and combating of crime, the TEU
envisages that appropriate measures will be put in place for effective control of these activities.
5.2.1.2 Treaty on the Function of European Union (TFEU)
The TFEU is another founding instrument of the EU that sets out the competencies of the Union.
It also reiterates the principle of respect and promotion of fundamental rights, and importantly,
specifically mentions some fundamental rights, which are relevant in border control situations
34 Case C‑ 23/12, Judgment of the Court (Fifth Chamber) of 17 January 2013.
35See for instance Recital 22 of Regulation 2007/2004. Reference to respect of fundamental rights are
prevalent in the Schengen acquis.
36 Recital 29. See also Art. 2a, 26a.
37European Union Agency for Fundamental Rights, Fundamental rights at land borders: findings from
selected European Union border crossing points (2014).
38 See for instance, Art. 6(1).
39 TEU, Art. 6 (2) and (3).
40 Art. 21.
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such as the right against discrimination,41 and the right to the protection of personal data.42
Specifically, the Treaty contains provisions on border checks, asylum and immigration. It provides
that the EU policy on third-country national requiring international protection such as asylum
seekers, shall ensure compliance with the principle of non-refoulement, and be in accordance with
the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status
of refugees, and other relevant treaties.43
The TFEU also incorporates regulations regarding the Area of Freedom, Security and Justice.
According to the TFEU, human rights and national legislations should be respected. The EU has
competence in Border Controls, Asylum and Migration, the judicial cooperation in civil and
criminal matters as well as police cooperation. This gives the EU the legal basis for advanced
regulations such as the Schengen Acquis.44
5.2.1.3 The Charter of Fundamental Rights of the European Union (CFREU)
The CFREU enshrines into EU law a wide array of fundamental rights, and by incorporating the
Charter into the Treaties, it is elevated to a primary law, having “the same legal value” as the
founding Treaties of the EU.45 The Charter also recognises fundamental rights as they result from
the constitutional traditions common to the Member States. The Charter applies to the EU Member
States when they implement EU law, and overall, spells out rights and principles many of which
are relevant for border checks. In a nutshell, these rights include: human dignity (Article 1); the
prohibition of torture and inhuman or degrading treatment or punishment (Article 4); the right
to liberty and security (Article 6); the right to privacy and data protection (Articles 7 and 8); the
right to asylum and protection in the event of removal, expulsion or extradition (Articles 18 and
19); non-discrimination (Article 21); the rights of the child (Article 24); the right to good
administration Article 41); and the right to an effective remedy (Article 47).46 For the legal
assessment of iBorderCtrl, the different rights have to be balanced against each other for all
functionalities separately, in order to properly consider the respective interests. Therefore,
further elaboration on these right will be udertaken within the different topics in Section 6 below.
Fundamental rights safeguards relating to border checks are also spelled out in a number of
secondary EU law, including the Schengen Borders Code, the data protection legislation, the EU
asylum acquis etc.47 The relevant secondary legislation is covered in the next sections. It is also
noteworthy that various Constitutions of European States contain fundamental rights provisions.
41 Art. 10.
42 Art. 16.
43 See Art. 77 and 78.
44Article 77 of the TFEU establishes the area of a common policy on asylum, immigration and external
border control.
45 See Art. 6 TEU.
46 See FRA.
47See FRA, Fundamental rights at airports: border checks at five international airports in the European
Union (2014), http://fra.europa.eu/sites/default/files/fra-2014-third-country-nationals-airport-border-
checks_en.pdf, p.14.
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5.2.2 Legislation regarding Schengen and Border Crossings in General
5.2.2.1 Schengen Acquis
Starting with the idea of the creation of an area without borders, the Schengen Agreement of 1985
(Schengen I)48 is regarded as a public international treaty, established by some selected European
states. This agreement is the first step towards the abolition of borders and free movement in the
European Union. While the Schengen Agreement includes provisions for short and long term aims,
the Convention on implementing the Schengen Agreement (Schengen II)49 contains more specified
measures on how the internal borders should be repealed. Furthermore, the Convention establish
provisions for
increased security at the external borders with improved cooperation between the police
authorities,
common procedures for border checks applying to persons who are crossing the external
borders,
common visa and residence policy,
harmonization of asylum procedures,
set up a platform for data exchange, the Schengen Information System (SIS).
After numerous other states of the EC have joined the Schengen Agreement, the complete
Schengen Legislation has been adopted to the Treaty of Amsterdam. From then on, Schengen and
further regulations are part of the EU legislative competence. Today, most of the provisions of the
Schengen Acquis are no more applicable. They have been replaced by EU regulations, and as long
as there is no primary EU Law, the provisions of those regulations are applicable. The further
regulations are based on the competencies of the EU established in the title for the area of
freedom, security and justice of the TFEU (Articles 67 to 89). For the purpose of this deliverable,
the provisions regarding the rules on data protection, police cooperation and the alert for the
refusal of entry, may be important.
5.2.2.2 Schengen Borders Code
The current Schengen Borders Code, EU-Regulation (EU) 2016/399, sets out the rules and
procedures for border controls.50 It was amended by Regulation EU (2017/458) on 15 March
2017.51 As it should ensure a free movement in the Schengen area, the external borders need a
strong protection. For this purpose, the border code describes the main procedures to ensure a
high level of border protection at every external border. The Schengen Borders Code replaced the
Articles 2 to 8 of the Schengen Convention, first in 2007, by Regulation 562/2006/EC.
The Regulation has four titles, including procedures for internal and external borders and several
attachments, as special provisions for special groups of persons or the various means of transport
used for border crossing.
48 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:42000A0922(01) .
49 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:42000A0922(02)&qid=1488832332722 .
50 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0399 .
51 http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=uriserv:OJ.L .2017.074.01.0001.01.ENG .
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In Article 4 of the Border Code the European Charter of Fundamental Rights and international
public law, in particular, the Geneva Conventions on Refugees, are explicitly mentioned and
should be respected. Additionally, the Regulation directly refers to the inviolability of the human
dignity and that the border checks on persons shall not discriminate them (Article 7 SBC).
Article 8 to 14 of the Border Code are the central provisions for the border crossing procedures
at the external borders. Particularly Article 8 SBC refer to the border checks on persons. From 7th
of April 2017, there is a systematic check on persons enjoying the right of free movement and
stay52 and a thorough check for third country nationals.
Systematic check means, that on entry and on exit, persons enjoying the right of free movement
under Union law shall be subject to the following checks:
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 the SIS, Interpol’s Stolen and Lost Travel Documents
(SLTD) database and national databases containing information on stolen,
misappropriated, lost and invalidated travel documents;
for passports and travel documents containing a storage medium as referred to in Article
1(2) of Council Regulation (EC) No 2252/200453, the authenticity of the chip data shall be
checked;
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.
In addition to this, thorough checks on the entry of third-country nationals not enjoying the right
of free movement and stay shall comprise verification of the conditions governing entry laid down
in Schengen Borders Code 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:
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 and
national databases containing information on stolen, misappropriated, lost and
invalidated travel documents;
for passports and travel documents containing a storage medium, the authenticity of the
chip data shall be checked, subject to the availability of valid certificates;
verification that the travel document is accompanied, where applicable, by the requisite
visa or residence permit.;
52 This change was introduced with Regulation (EU) 2017/458 on 15 March 2017.
53 For further information, see section 5.2.2.13.
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examination of the entry and exit stamps on the travel document of the third-country
national concerned, in order to verify, by comparing the dates of entry and exit, that the
person has not already exceeded the maximum duration of authorised stay in the territory
of the Member States;
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;
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;
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;
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 767/200854, by way of derogation, the VIS may be
consulted using the number of the visa sticker in all cases and, on a random basis, the
number of the visa sticker in combination with the verification of fingerprints where
traffic of such intensity arises that the waiting time at the border crossing point becomes
excessive, all resources have already been exhausted as regards staff, facilities and
organisation; and on the basis of an assessment there is no risk related to internal security
and illegal immigration (actually a use case for iBorderCtrl risk score system);
however, in all cases where there is doubt as to the identity of the holder of the visa and/or
the authenticity of the visa, the VIS shall be consulted systematically using the number of
the visa sticker in combination with the verification of fingerprints.
Thorough checks on exit shall comprise:
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 a storage medium, the authenticity of the
chip data shall be checked, subject to the availability of valid certificates;
verification of the travel document for signs of falsification or counterfeiting;
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.
54 For further details, see section 5.2.2.6.
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In addition to the checks referred above, thorough checks on exit may also comprise:
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;
verification that the person did not exceed the maximum duration of authorised stay in
the territory of the Member States;
for the purpose of identification of any person who may not fulfill, or who may no longer
fulfill, the conditions for entry, stay or residence in the territory of the Member States, the
VIS may be consulted in accordance with Article 20 of Regulation (EC) No 767/2008.
As this Regulation include the central provisions for border controls, the iBorderCtrl toolkit
should be aware of these procedures on border checks. Furthermore, the database queries carried
out by the iBorderCtrl toolkit must comply with the provisions contained in the Schengen Borders
Code.
5.2.2.3 Schengen Information System II
The Schengen Information System of the second Generation (SIS II), is implemented and regulated
by the Regulations EC 1986/2006, EC 1987/2006 and EC 1988/200655, and the successor of the
SIS implemented by the Schengen Borders Code.56
The SIS II is a database, which is primarily operated by the eu-LISA57 and contains information’s
to
third country nationals to refuse entry
persons to arrest with the purpose of extradition
missing persons (including children)
stolen or lost objects
illicit goods for seizure.
The SIS II is structured into a central database and national systems. Every law enforcement
authority of the Schengen area has access to the SIS II as well as the European institutions Europol
and Eurojust.
The Regulation contains provisions on the organization of the database, the nature of the data and
the purpose of the storage. Furthermore, provisions for data protection are included in the
Regulation: Article 20 of the Regulation list the categories of data, which could be stored, and
Article 22 adds prerequisites for biometric data such as fingerprints and photos. The storage of
sensitive data is prohibited by Article 40 of the Regulation. Rules regarding the processing of data
in the SIS II, such as the purposes for which data may be processed, can be found in Article 31. The
right of access, correction of inaccurate data and deletion of unlawfully stored data is stipulated
in Article 41, the right of information for suspects which are subject to an alert is stipulated in
Article 42.
55 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006R1987&qid=1488844399075
56 See Article 92 et seq. Schengen Borders Code.
57 “European Agency for the operational management of Large-Scale IT Systems in the area of freedom, justice
and security“ http://www.eulisa.europa.eu/Pages/default.aspx
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According to the technical description, the iBorderCtrl toolkit will get access to the SIS II database,
and therefore the SIS II-Regulation will have an impact on the toolkit.
5.2.2.4 Handbook for Schengen Border Guards
The “Schengen Handbook” is a practical handbook for Schengen border guards and was first
established with the Commission Recommendation C(2006)5181 final.58 The Handbook was
amended in 2015 with the Commission Recommendation C(2015) 3894 final.59 The aim of the
handbook is, among others, to ensure that Fundamental (Human) Rights enshrined in the
European Convention on Human Rights and the Charter of Fundamental Rights of the European
Union must be guaranteed to any person seeking to cross the Schengen borders.60 In particular,
border guards have to fully respect human dignity and must not discriminate against persons
under any circumstances. Last but not least, any measures taken must be proportionate to the
objective pursued by such measures. However, it has to be noted that the handbook being a
Commission recommendation is non-binding. As iBorderCtrl will offer border guards additional
tools to perform their duty, which may impact those rights, all inputs provided by the iBorderCtrl
system for a border guard should be in a form that is compliant with the requirements of the
handbook.
5.2.2.5 EU Visa Regulation
The Visa Regulation consist of Regulation (EC) No 810/2009 of the European Parliament and of the
Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), Council Regulation (EC)
No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of
visas when crossing the external borders and those whose nationals are exempt from that
requirement61 (Visa List) and the regulation on Visa Information System (discussed in the next
section). The Visa Code consolidates visa policy, types, procedures of application, decision and
issue. The Visa List follows from the Schengen acquis and stipulates that citizens from certain
third countries with a given type of travel document are required to hold a visa when crossing
Schengen borders. It also lists other third countries whose citizens can enter the Schengen Zone
free of visa for a given period if they hold the required type of documents. The countries assigned
to this group are listed in Annex I of the Regulation (see Article 1 (1). On the contrary, Annex II
contains a list of third countries from which citizens shall be exempt from the requirements
stipulated in the Regulation, as long as their stay is no more than 90 days in a 180-day period (see
Article 1 (2)).
The Regulation also contains formal requirements for the visa. According to Article 2, visa shall
mean an authorisation issued by a Member State or a decision taken by such State which is required
with a view to:
entry for an intended stay in that Member State or in several Member States of no more than
three months in total,
58 Available at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST 15010 2006 INIT.
59 Available at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-
library/documents/policies/borders-and-
visas/schengen/docs/commission recommendation c 2015 3894 en.pdf.
60 See section 1.2 of the handbook, p. 14.
61 Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R0539&from=EN.
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