EES Delayed in Nine Schengen States: EU Law After the Deadline
Introduction
Reports that the EES is delayed in nine Schengen states do not mean that Europe’s Entry/Exit System has been postponed again or suspended across the Schengen area. The EES started operations on 12 October 2025 and, according to the European Commission’s formal timetable, became fully operational at Schengen external border crossing points on 10 April 2026 (European Commission, 2026a).
The present dispute is narrower. France, Belgium, the Netherlands, Germany, Greece, Malta, Portugal, Italy and Switzerland are reportedly still applying incomplete or reduced biometric procedures at some border crossings after the special congestion-related flexibility ceased to apply after 6 September 2026 (The Guardian, 2026).
Regulation (EU) 2017/2226 established the EES to record the entry, exit and refusal-of-entry data of covered third-country nationals admitted for short stays. It records travel-document information and biometric identifiers, including facial images and, where required, fingerprints, while replacing routine passport stamping with electronic entry and exit records (European Union, 2017).
Regulation (EU) 2025/1534 introduced temporary rules for the progressive deployment of the system and allowed biometric registration to be suspended at particular border crossings in defined circumstances involving excessive waiting times. Articles 7(3), 7(4) and 8(2)(c) made that additional flexibility expressly temporary. Its expiry did not affect the continuing force of the EES itself (European Union, 2025).
For participating EU Member States, the legal position is shaped by Article 288 TFEU, under which regulations are binding in their entirety and directly applicable. National authorities retain responsibility for staffing, infrastructure and border administration, but operational pressure does not itself create a new derogation from Union law. Regulation 2017/2226 nonetheless preserves separate fallback rules for genuine technical failures (European Union, 2012; European Union, 2017).
Switzerland requires separate legal treatment because its participation in the EES derives from the development of the Schengen acquis under the EU–Swiss association framework, rather than from Article 288 TFEU. The European Commission has also acknowledged that some states still require additional operational adjustment and may receive technical assistance, including support involving Frontex, while implementation continues (European Commission, 2026b).
The Commission has not formally extended the expired suspension mechanism, nor has it publicly stated that infringement proceedings are excluded. Uneven implementation may change the procedure encountered at particular borders and may affect the completeness or accuracy of individual records, but it does not alter the substantive rule limiting short stays to 90 days in any 180-day period.
1. EES Delayed After September 6: What Changed
The latest EES delay does not amount to a renewed postponement of the Entry/Exit System across the Schengen area. The European Commission continues to treat the system as fully operational at external Schengen border crossing points. The present difficulty is more specific: biometric registration reportedly remains incomplete, restricted, or suspended at some crossings in France, Belgium, the Netherlands, Germany, Greece, Malta, Portugal, Italy, and Switzerland after the special congestion-related flexibility expired (European Commission, 2026a; O’Carroll, 2026).
The problem is not uniform within those states. Current reporting indicates that biometric processing is already operating at locations including the Eurostar terminal in Brussels, the port of Antwerp, Frankfurt Airport, and Amsterdam Schiphol, while other crossings remain affected. France, for example, had not introduced the relevant EES checks at the juxtaposed French controls in the Port of Dover. Describing any of the nine states as having suspended the EES nationwide would obscure those differences (O’Carroll, 2026).
Switzerland also requires precise terminology. It is not an EU Member State but participates in Schengen and in the EES through its association with the implementation, application, and development of the Schengen acquis. Regulation (EU) 2017/2226 expressly treats the EES as a development of that acquis for Switzerland (European Union, 2017).
Earlier concerns focused heavily on whether biometric processing could be introduced without producing excessive waiting times during the progressive rollout and the first months of full operation. The legal setting became more restrictive after 6 September 2026 because the specific post-rollout mechanism permitting temporary suspension of biometric registration in cases of exceptional congestion ceased to apply. Congestion, staffing shortages, and infrastructure constraints may explain incomplete processing, but they do not by themselves establish that a departure from ordinary EES requirements is legally authorized.
2. The September 6 Deadline in the EES Framework
The September deadline followed a staged implementation process. Commission Implementing Decision (EU) 2025/1544 fixed 12 October 2025 as the date on which the EES would start operations. Regulation (EU) 2025/1534 then allowed participating states to introduce the system progressively rather than requiring complete biometric operation at every border crossing from the first day (European Commission, 2025; European Union, 2025).
That progressive period lasted 180 days. During the first 60 days, EES could operate without biometric functionalities. By the 90th day, biometric functionality had to be available at at least half of each state’s border crossing points, while at least 35 percent of estimated border crossings had to be registered using biometric data. By day 150, biometric functionality was required at all border crossing points and at least half of estimated crossings were to be registered. By day 170, all covered third-country nationals crossing the external border were to be registered in the system (European Union, 2025).
The 180-day progressive period ended on 10 April 2026. The European Commission consequently announced that the EES had become fully operational across the participating Schengen countries on that date, with electronic entry and exit records replacing routine passport stamping for travelers covered by the system (European Commission, 2026a).
A narrower safeguard continued after the progressive period. Article 7(3) of Regulation 2025/1534 permitted a state, for 90 days after progressive deployment ended, to suspend biometric registration at an individual border crossing point for up to six hours where exceptional traffic caused excessive waiting times. Article 7(4) provided an automatic additional 60 days where fewer than 80 percent of the individual files created during progressive deployment contained biometric data (European Union, 2025).
Article 8(2)(c) established the final temporal limit. Articles 7(3) and 7(4) ceased to apply 330 days after EES operations began. With operations beginning on 12 October 2025, the special flexibility remained available through 6 September 2026. The Commission itself identified 6 September as the final day on which the temporary biometric suspension mechanism could be used (European Union, 2025; European Commission, 2026b).
September 6 was thus not a second launch date for the EES and did not affect the continuing force of Regulation 2017/2226. It marked the expiry of a specific derogatory power designed to address exceptional congestion after progressive deployment. Any continued departure from ordinary EES processing after that date requires another legal basis within the applicable Schengen and EES framework.
3. What EES Law Still Requires at the Border
Regulation (EU) 2017/2226 establishes the central legal functions of the Entry/Exit System. It records the date, time, and place of entry and exit of covered third-country nationals, records refusals of entry, and supports the calculation of authorized short stays and the identification of possible overstayers. These functions operate alongside the Schengen Borders Code, Regulation (EU) 2016/399, which continues to govern external-border checks and the substantive conditions for entry (European Union, 2016; European Union, 2017).
The EES does not apply to every person crossing an external Schengen border. Its main scope concerns third-country nationals traveling for short stays who are subject to the relevant external-border checks, together with covered persons refused entry. EU citizens and nationals of Iceland, Liechtenstein, Norway, and Switzerland are outside the EES registration regime (European Union, 2017; European Commission, 2026c).
Legal status can also remove a third-country national from EES registration. Holders of qualifying residence permits or long-stay visas issued by states operating the EES are generally exempt, while comparable documents issued by Ireland or Cyprus do not produce the same EES exemption because those states do not operate the system. Certain family members benefiting from EU free-movement law are also excluded where they possess the required residence documentation (European Commission, 2026c).
Biometric treatment differs according to the traveler’s immigration status. Visa-exempt third-country nationals ordinarily have both a facial image and fingerprint data recorded in their individual EES file. For travelers subject to a short-stay visa requirement, the EES records the facial image while fingerprint verification generally relies on the Visa Information System, where those fingerprints have already been registered (European Union, 2017).
The familiar 90-days-in-180-days limit was not created by the EES. It remains the general short-stay rule under the Schengen Borders Code for third-country nationals subject to that regime. EES provides electronic records and automated calculation to assist authorities and travelers in determining authorized stay, although particular categories of persons within the wider EES framework may be subject to different legal treatment and are not necessarily included in the automated stay calculator in the same way (European Union, 2016; European Union, 2017).
Routine passport stamping has similarly been replaced by electronic EES records for travelers registered in the system. That change concerns the method by which border movements are recorded; it does not alter the substantive conditions governing lawful entry or duration of stay. Physical stamps remain relevant in defined fallback situations where electronic registration cannot be completed.
4. Technical Failures After the Temporary Derogation
The end of the congestion-related derogation did not leave border authorities without legal mechanisms for exceptional situations. Regulation 2017/2226 contains permanent fallback procedures for technical failures, while the Schengen Borders Code continues to permit limited relaxation of border checks where exceptional and unforeseen circumstances create excessive waiting times. Those mechanisms serve different purposes and impose different conditions (European Union, 2016; European Union, 2017).
Article 21 of Regulation 2017/2226 governs technical impossibility within the EES itself. Where data cannot be entered into the Central System or the Common Identity Repository, they must first be stored temporarily through the National Uniform Interface. If that is not technically possible, the data are to be stored locally in electronic form and transmitted once normal operation is restored (European Union, 2017).
A still narrower fallback applies when data cannot be entered centrally, transmitted through the National Uniform Interface, or stored locally in electronic form. In those circumstances, the relevant information is recorded manually, excluding biometric data, and an entry or exit stamp is affixed to the travel document. The underlying border check required by the Schengen Borders Code must still be carried out (European Union, 2017).
Congestion is treated differently. Article 9 of the Schengen Borders Code permits external-border checks to be relaxed where exceptional and unforeseen circumstances cause traffic of such intensity that waiting times become excessive and all available resources concerning staff, facilities, and organization have been exhausted. The provision does not, however, recreate the expired power simply to omit EES registration. Under the current Code, the required data must still be entered into the EES, subject to the separate technical-failure rules where electronic registration is genuinely impossible (European Union, 2016).
Long queues, inadequate staffing, insufficient biometric booths, and technical system failure are thus not legally interchangeable. After September 6, ordinary congestion may justify relaxation of aspects of the border check under Article 9, while technical impossibility may activate Article 21 of Regulation 2017/2226. Neither mechanism creates a general national power to return to the pre-EES border regime whenever full biometric processing becomes operationally difficult.
5. National Discretion Under Binding EES Rules
The EES is administered by national border authorities, but its principal requirements derive from EU legislation rather than national policy. Article 288 TFEU provides that a regulation has general application, is binding in its entirety, and is directly applicable in every Member State. Regulation 2017/2226 and the relevant provisions of the Schengen Borders Code consequently define the legal limits within which participating EU states organize their external-border controls (European Union, 2012).
National governments nevertheless retain extensive administrative responsibility. They determine staffing levels, organize facilities, procure equipment, and manage passenger flows at airports, ports, and land borders. The EES framework leaves room for those practical decisions because border conditions differ considerably across crossing points.
Administrative discretion is different from authority to disregard a regulatory requirement. A state may use an exception or fallback where current EU legislation expressly permits it and where the statutory conditions are satisfied. Article 9 of the Schengen Borders Code, Article 21 of Regulation 2017/2226, and the now-expired provisions of Regulation 2025/1534 illustrate separate legal responses to congestion, technical failure, and transitional implementation.
Their differences are significant. Regulation 2025/1534 expressly permitted temporary suspension of biometric registration because of excessive waiting times during a defined period. Article 9 of the Schengen Borders Code permits certain border checks to be relaxed during exceptional congestion but preserves the requirement to enter relevant data in EES. Article 21 addresses technical inability to complete electronic registration. Operational necessity cannot be used to merge those distinct powers into a broader unwritten derogation (European Union, 2016; European Union, 2017; European Union, 2025).
Switzerland participates through a different legal route. Regulation 2017/2226 constitutes a development of the Schengen acquis covered by the agreement associating Switzerland with the implementation, application, and development of Schengen rules. Switzerland is consequently part of the EES framework, but its obligations do not arise because Article 288 TFEU applies to it as though it were an EU Member State. They arise through the legal mechanisms governing Switzerland’s association with the Schengen acquis (European Union, 2017).
6. Commission Tolerance and EU Enforcement
The European Commission has acknowledged that some border crossing points still require an additional period of operational adjustment after the expiry of the temporary biometric suspension mechanism. Its public position has emphasized continued contact with the affected Member States, technical and operational assistance, and possible additional support from Frontex. The Commission has also maintained that implementation must proceed within the rules governing the EES (European Commission, 2026b).
For EU Member States, Article 258 TFEU provides the principal treaty procedure for addressing failures to fulfill obligations under Union law. Where the Commission considers that a Member State has breached an obligation, it may give the state an opportunity to submit observations, issue a reasoned opinion, and ultimately refer the matter to the Court of Justice if compliance is not achieved (European Union, 2012a).
The Commission nevertheless retains considerable discretion over infringement proceedings. In Case C-242/23, Tecno*37, the Court of Justice confirmed that the Commission has discretion over whether to initiate, continue, or close such proceedings. The Court also made clear that closing an infringement procedure does not establish that the contested national conduct is compatible with EU law or provide a Member State with a conclusive guarantee of legality (CJEU, 2024).
That distinction is directly relevant to the current EES difficulties. The Commission’s acknowledgment that further operational adjustment is needed does not amount to an extension of Articles 7(3) and 7(4) of Regulation 2025/1534. No public Commission statement identified in the present context has created a new derogation or revived the expired biometric-suspension mechanism.
A state may thus remain bound by an EES requirement even if the Commission initially pursues cooperation rather than formal enforcement. At the same time, reduced biometric processing is not automatically unlawful: Article 9 of the Schengen Borders Code and Article 21 of Regulation 2017/2226 continue to provide specific forms of flexibility where their conditions are satisfied. The legality of a particular practice depends on the applicable legal basis and the facts at the border crossing, not on the mere absence of immediate Article 258 proceedings.
7. Uneven EES Enforcement and Travelers
Travelers subject to EES can encounter different procedures at different Schengen external borders. One crossing may conduct the ordinary biometric registration required by Regulation 2017/2226, while another may be operating under a technical fallback. In situations covered by Article 9 of the Schengen Borders Code, certain elements of the border check may also be relaxed because of exceptional congestion, while the applicable EES data-entry obligations remain in place (European Union, 2016; European Union, 2017).
These procedural differences can affect waiting times, fingerprint collection, facial-image capture, and the way a crossing is recorded. They do not create different substantive admission rules for otherwise comparable travelers. Failure to complete an ordinary EES step does not itself create a right of entry, legalize an otherwise unauthorized stay, or extend the period for which a person may lawfully remain in the Schengen area (European Union, 2016; European Union, 2017).
The same distinction applies to the 90-days-in-180-days rule. For third-country nationals subject to that general short-stay limit, the permissible period derives from the Schengen Borders Code. EES supplies electronic records and an automated calculator that assist in determining how much authorized time has been used. A missing fingerprint or incomplete biometric registration does not add lawful days to that underlying entitlement (European Union, 2016; European Union, 2017).
Passport stamps must also be read in their legal context. Electronic EES records replace routine stamping for covered travelers under ordinary operation, but Regulation 2017/2226 still requires manual recording and a physical stamp in defined cases of technical impossibility. A stamp may document a crossing without establishing that EES is generally inapplicable, while the absence of a stamp does not independently determine the length or legality of a person’s stay.
8. Biometric Data, Accuracy and Individual Remedies
The EES combines travel-document information, entry and exit records, refusal-of-entry data, facial images, and fingerprints where required within a large-scale border information system. Those records contribute to the calculation of authorized stays and to the identification of persons who may have overstayed. Accuracy can consequently affect later border decisions and the legal position attributed to an individual traveler (European Union, 2017).
Regulation 2017/2226 subjects the use of the system to explicit fundamental-rights safeguards. Article 10 requires competent authorities to ensure that use of the EES is necessary, appropriate, and proportionate and that biometric capture complies with safeguards recognized by the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and the UN Convention on the Rights of the Child (European Union, 2017).
The data-protection regime depends partly on the purpose for which EES data are processed. Under Article 49, processing by Member State authorities under the ordinary EES framework is governed by the General Data Protection Regulation. Processing by designated authorities for the prevention, detection, or investigation of terrorist offenses and other serious crime is instead governed by Directive (EU) 2016/680, the Law Enforcement Directive (European Union, 2016; European Union, 2017). The Charter separately protects private life, personal data, and the right to an effective remedy (European Union, 2012b).
Article 52 establishes the EES procedure through which third-country nationals may exercise rights corresponding to access, rectification, completion, erasure, and restriction of processing under Articles 15 to 18 GDPR. A request may be addressed to the competent authority of any Member State, and the applicable EES procedure requires a response within 45 days. Cooperation rules apply where the state receiving the request is not the state responsible for entering the disputed data (European Union, 2017).
Accuracy obligations also arise independently of an individual request. Under Article 35, where the responsible Member State has evidence that data entered in EES are factually inaccurate or incomplete, or were processed contrary to the Regulation, it must verify the information and rectify, complete, or erase it where required. Corrections can also require corresponding changes to information used to identify possible overstayers (European Union, 2017).
These rights are supported by supervisory and judicial mechanisms. Article 53 provides for cooperation between competent authorities and assistance from national supervisory authorities, while Article 54 preserves access to an action or complaint where relevant data rights are refused or a request is not answered within the prescribed period (European Union, 2017).
Irregular or incomplete border processing does not displace those protections. A technical failure or incomplete registration may create the possibility of an inaccurate or incomplete travel record, but it does not remove the obligations governing lawful processing and data accuracy. If an error later affects the calculation of authorized stay or contributes to an indication that a traveler has overstayed, the EES framework provides mechanisms through which the record can be challenged and corrected.
Also read
Conclusion
The EES has not been generally postponed. Regulation 2017/2226 remains in force, while the special congestion-related authority created by Regulation 2025/1534 ceased to be available after 6 September 2026. Other legal mechanisms survive, including the relaxation of certain border checks under Article 9 of the Schengen Borders Code and the technical-failure procedures in Article 21 of the EES Regulation, but each is confined to its own statutory conditions.
The Commission’s response to continuing implementation problems does not change that legal structure. Cooperation, technical assistance, and additional operational adjustment can assist states in reaching full compliance. If the Commission decides not to initiate or immediately pursue proceedings under Article 258 TFEU, that enforcement choice does not amend Regulation 2017/2226, revive an expired derogation, or conclusively establish that national conduct complies with EU law (European Union, 2012a; CJEU, 2024).
For travelers, uneven implementation can change the procedure encountered at a particular border without changing the substantive rules governing admission or authorized stay. Technical failures may produce manual records or passport stamps, and biometric processing may be incomplete at some crossings. Those variations do not create additional lawful time under the general 90-days-in-180-days rule, nor do they remove the rights attached to personal and biometric data stored in the EES.
References
Court of Justice of the European Union (2024) Tecno37 v Ministero dello Sviluppo economico and Camera di Commercio Industria Artigianato e Agricoltura di Bologna*, Case C-242/23, Judgment of the Court (First Chamber), 4 October 2024, ECLI:EU:C:2024:831. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62023CJ0242 (Accessed: 14 September 2026).
European Commission (2025) Commission Implementing Decision (EU) 2025/1544 of 30 July 2025 determining the date from which the Entry/Exit System is to start operations pursuant to Regulation (EU) 2017/2226 of the European Parliament and of the Council. OJ L, 2025/1544, 31 July 2025. Available at: https://eur-lex.europa.eu/eli/dec_impl/2025/1544/oj (Accessed: 14 September 2026).
European Commission (2026a) Entry/Exit System (EES) is fully operational [online]. Directorate-General for Migration and Home Affairs, 10 April 2026. Available at: https://home-affairs.ec.europa.eu/news/entryexit-system-ees-fully-operational-2026-04-10_en (Accessed: 14 September 2026).
European Commission (2026b) Midday press briefing from 01/09/2026 [online video]. European Commission Audiovisual Service, 1 September 2026. Available at: https://audiovisual.ec.europa.eu/en/media/video/I-293789 (Accessed: 14 September 2026).
European Commission (2026c) The Entry Exit System is fully operational since 10 April 2026. Who is exempt? [online]. Directorate-General for Migration and Home Affairs, 27 July 2026. Available at: https://home-affairs.ec.europa.eu/news/entry-exit-system-fully-operational-10-april-2026-who-exempt-2026-07-27_en (Accessed: 14 September 2026).
European Union (2012a) Consolidated version of the Treaty on the Functioning of the European Union. OJ C 326, 26 October 2012, pp. 47–390. Available at: https://eur-lex.europa.eu/eli/treaty/tfeu_2012/oj/eng (Accessed: 14 September 2026).
European Union (2012b) Charter of Fundamental Rights of the European Union. OJ C 326, 26 October 2012, pp. 391–407. Available at: https://eur-lex.europa.eu/eli/treaty/char_2012/oj/eng (Accessed: 14 September 2026).
European Union (2016a) 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). OJ L 77, 23 March 2016, pp. 1–52. Available at: https://eur-lex.europa.eu/eli/reg/2016/399/2025-10-12/eng (Accessed: 14 September 2026).
European Union (2016b) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA. OJ L 119, 4 May 2016, pp. 89–131. Available at: https://eur-lex.europa.eu/eli/dir/2016/680/oj (Accessed: 14 September 2026).
European Union (2016c) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). OJ L 119, 4 May 2016, pp. 1–88. Available at: https://eur-lex.europa.eu/eli/reg/2016/679/oj (Accessed: 14 September 2026).
European Union (2017) Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011. OJ L 327, 9 December 2017, pp. 20–82, consolidated version of 12 June 2026. Available at: https://eur-lex.europa.eu/eli/reg/2017/2226/2026-06-12/eng (Accessed: 14 September 2026).
European Union (2025) Regulation (EU) 2025/1534 of the European Parliament and of the Council of 18 July 2025 on temporary derogations from certain provisions of Regulations (EU) 2017/2226 and (EU) 2016/399 as regards the progressive start of operations of the Entry/Exit System. OJ L, 2025/1534, 23 July 2025. Available at: https://eur-lex.europa.eu/eli/reg/2025/1534/oj (Accessed: 14 September 2026).
O’Carroll, L. (2026) ‘Nine EU countries further delay EES border checks’, The Guardian, 14 September [online]. Available at: https://www.theguardian.com/world/2026/sep/14/eu-countries-delay-ees-entry-exit-system-border-checks-france-greece-portugal-italy (Accessed: 14 September 2026).
