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Other derogations from Regulations (EU) 2017/2226 and (EU) 2016/399 1. In addition to the rules set out in Article 4, the rules set out in this Article shall apply during the progressive start of operations of the EES irrespective of the way in which the Member States choose to start operating the EES.

2. Border authorities shall systematically stamp the travel documents of third-country nationals referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226 on entry and exit. The stamping obligations referred to in Article 42a(1), second subparagraph, and Article 42a(2), (5) and (6) of Regulation (EU) 2016/399 shall apply mutatis mutandis in the Member States operating the EES.

3. For entering, amending, erasing and consulting the data in the EES, national authorities that are competent for the purposes laid down in Articles 23 to 29, 31, 32, 34 and 35 of Regulation (EU) 2017/2226 shall:

(a) consider stamps to prevail where there are no relevant EES data;

(b) consider EES data to prevail:

(i) where there is a discrepancy between the individual file containing biometric data and the stamp; or (ii) where a stamp is missing;

(c) decide on a case-by-case basis whether the stamp or the EES data prevail:

(i) where there is a discrepancy between the individual file without biometric data and the stamp affixed in accordance with paragraph 2 of this Article; or (ii) in cases referred to in Article 16(4) of Regulation (EU) 2017/2226. National authorities and Europol shall not take decisions adversely affecting individuals solely on the basis of there being no registration of the alleged entry or exit in the EES.

4. In the absence of a stamp affixed in the travel document and of an individual file created in the EES for a third-country national present on the territory of a Member State, national authorities may presume that the third-country national does not fulfil, or no longer fulfils, the conditions relating to entry or stay in the Member States. The presumption referred to in the first subparagraph shall not apply to third-country nationals who provide, by any means, credible evidence that they enjoy the right of free movement under Union law, or that they hold a residence permit or a long-stay visa. The presumption referred to in the first subparagraph may be rebutted where the third-country nationals provide, by any means, credible evidence, such as transport tickets or proof of presence outside the territory of the Member States or of the date of expiry of a previous residence permit or long-stay visa, that they have respected the conditions relating to the duration of a short stay. Where the presumption referred to in the first subparagraph is rebutted, national authorities using the EES shall perform one or more of the following tasks, to the extent allowed by this Regulation:

(a) create an individual file for that third-country national in the EES, if necessary;

(b) update the latest entry/exit record for that third-country national by entering the missing data;

(c) erase an existing individual file for that third-country national where Article 35 of Regulation (EU) 2017/2226 provides for such erasure.

5. Border authorities shall make use of the interoperability between the EES and the VIS referred to in Article 8(2) of Regulation (EU) 2017/2226 only at the border crossing points at which the EES is operated. Border authorities shall continue to access the VIS directly:

(a) at the border crossing points at which the EES is not operated;

(b) where the EES is suspended pursuant to Article 7 of this Regulation.

6. National authorities and Europol shall disregard the following:

(a) the results of the automated calculator that provides information on the maximum duration of the authorised stay referred to in Article 11 of Regulation (EU) 2017/2226;

(b) the automatically generated list of overstayers and its consequences, in particular as referred to in Article 6(1), points (c) and (h), Article 12(3), Article 16(4), Article 34(3), Article 50(1), points (i) and (k), and Article 63(1), point (e), of Regulation (EU) 2017/2226.

7. For the purposes of Articles 45 and 48 of Regulation (EU) 2017/2226, EES data processing operations carried out by Member States pursuant to this Regulation shall not be considered as unlawful or as not compliant with Regulation (EU) 2017/2226.

8. Verification of the identity and previous registration of third-country nationals pursuant to Article 23 of Regulation (EU) 2017/2226 shall be carried out on the third-country nationals referred to in Article 2(1) and (2) of that Regulation at the border crossing points at which the EES is operated with biometric functionalities, including through self-service systems, where available.

9. In addition to the specific information referred to in Article 50(5) of Regulation (EU) 2017/2226 that is to be added by the Member States in the template to provide information to third-country nationals referred to in Article 2(1) and (2) of that Regulation about the processing of their personal data in the EES, Member States shall supplement that template at the time the individual file of the person concerned is being created with the following information: ‘Please note that the Entry/Exit System is being progressively rolled out. During this period [from …], your personal data, including your biometric data, might not be collected for the purposes of the Entry/Exit System at all Member States’ external borders. If the collection of that information is mandatory and you choose not to provide it, you will be refused entry. During the progressive roll-out, your data will not automatically be added to a list of overstayers. In addition, you will not be able to check how much longer you are authorised to stay using the EES website or equipment available at border crossing points. You can verify the duration of your authorised stay by using the short stay calculator tool available on the European Commission website at . After the progressive roll-out of the Entry/Exit System, your personal data will be processed as otherwise set out in this form.’.

10. The information on the EES website referred to in Article 50(3) of Regulation (EU) 2017/2226 shall be adapted by the Commission to reflect the progressive start of operations of the EES.

11. The information campaign referred to in Article 51 of Regulation (EU) 2017/2226 accompanying the start of operations of the EES shall reflect the specific conditions at the border crossing points. That information campaign shall ensure that the relevant information is communicated to those affected and shall take into account the thresholds and requirements set out in Article 4 of this Regulation. The Commission, involving the European Data Protection Supervisor, shall adapt the materials for that information campaign in a reasonable timeframe, prior to the progressive start of operations of the EES. Furthermore, the Commission shall continue to support Member States in their preparation of those materials.

12. The application of Article 11(3), Article 12(1) and (2), Article 13(1) and (2), Article 20 and Article 21 of Regulation (EU) 2017/2226, as well as the application of Article 8(9) of Regulation (EU) 2016/399, shall be suspended.

13. By way of derogation from Article 22 of Regulation (EU) 2017/2226 and Article 12a of Regulation (EU) 2016/399, the transitional period and the transitional measures set out in those Articles shall apply from the first day after the end of the progressive start of operations of the EES.

14. At the border crossing points at which the EES is not operated, border checks shall be carried out in accordance with Regulation (EU) 2016/399 as applicable on the day before the date from which the EES is to start operations as decided by the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226. At the border crossing points at which the EES is operated, border checks shall be carried out in accordance with Regulations (EU) 2017/2226 and (EU) 2016/399. By way of derogation from the second subparagraph of this paragraph, at the border crossing points where the EES is operated without biometric functionalities, Article 6(1), point (f)(i), of Regulation (EU) 2016/399, and, solely for the purposes of the EES, the provisions on the verification of third-country nationals based on biometric data referred to in Article 6(1), point (f)(ii), and Article 8(3), points (a) and (g), of that Regulation, shall not apply. For the purposes of this Regulation, the application of Article 9(3) and Article 12 of Regulation (EU) 2016/399 shall be suspended.

15. By way of derogation from Article 37 of Regulation (EU) 2017/2226, the Programme Management Board of eu-LISA shall continue its activities until the end of the progressive start of operations of the EES. In particular, the Programme Management Board of eu-LISA shall monitor the progressive start of operations of the EES, including the stability of the EES Central System, and recommend additional actions where appropriate.