Updated on April 10th 2024 based on the version and article numbering approved by the EU Parliament on March 13th 2024.
For the purposes of this Regulation the notion of ‘publicly accessible space’ should be understood as referring to any physical place that is accessible to an undetermined number of natural persons, and irrespective of whether the place in question is privately or publicly owned, irrespective of the activity for which the place may be used, such as commerce (for instance, shops, restaurants, cafés), services (for instance, banks, professional activities, hospitality), sport (for instance, swimming pools, gyms, stadiums), transport (for instance, bus, metro and railway stations, airports, means of transport ), entertainment (for instance, cinemas, theatres, museums, concert and conference halls), or leisure or otherwise (for instance, public roads and squares, parks, forests, playgrounds). A place should be classified as publicly accessible also if, regardless of potential capacity or security restrictions, access is subject to certain predetermined conditions, which can be fulfilled by an undetermined number of persons, such as purchase of a ticket or title of transport, prior registration or having a certain age. In contrast, a place should not be considered to be publicly accessible if access is limited to specific and defined natural persons through either Union or national law directly related to public safety or security or through the clear manifestation of will by the person having the relevant authority on the place. The factual possibility of access alone (such as an unlocked door or an open gate in a fence) does not imply that the place is publicly accessible in the presence of indications or circumstances suggesting the contrary (such as. signs prohibiting or restricting access). Company and factory premises, as well as offices and workplaces that are intended to be accessed only by relevant employees and service providers, are places that are not publicly accessible. Publicly accessible spaces should not include prisons or border control. Some other areas may be composed of both not publicly accessible and publicly accessible areas, such as the hallway of a private residential building necessary to access a doctor's office or an airport. Online spaces are not covered either, as they are not physical spaces. Whether a given space is accessible to the public should however be determined on a case- by-case basis, having regard to the specificities of the individual situation at hand.
[Previous version]
Updated on Feb 6th 2024 based on the version endorsed by the Coreper I on Feb 2nd
The use of those systems for the purpose of law enforcement should therefore be prohibited, except in exhaustively listed and narrowly defined situations, where the use is strictly necessary to achieve a substantial public interest, the importance of which outweighs the risks. Those situations involve the search for certain victims of crime including missing people; certain threats to the life or physical safety of natural persons or of a terrorist attack; and the localisation or identification of perpetrators or suspects of the criminal offences referred to in Annex IIa if those criminal offences are punishable in the Member State concerned by a custodial sentence or a detention order for a maximum period of at least four years and as they are defined in the law of that Member State. Such threshold for the custodial sentence or detention order in accordance with national law contributes to ensure that the offence should be serious enough to potentially justify the use of ‘real-time’ remote biometric identification systems. Moreover, the list of criminal offences as referred in Annex IIa is based on the 32 criminal offences listed in the Council Framework Decision 2002/584/JHA9, taking into account that some are in practice likely to be more relevant than others, in that the recourse to ‘real-time’ remote biometric identification will foreseeably be necessary and proportionate to highly varying degrees for the practical pursuit of the localisation or identification of a perpetrator or suspect of the different criminal offences listed and having regard to the likely differences in the seriousness, probability and scale of the harm or possible negative consequences.
An imminent threat to life or physical safety of natural persons could also result from a serious disruption of critical infrastructure, as defined in Article 2, point (a) of Directive 2008/114/EC, where the disruption or destruction of such critical infrastructure would result in an imminent threat to life or physical safety of a person, including through serious harm to the provision of basic supplies to the population or to the exercise of the core function of the State.
In addition, this Regulation should preserve the ability for law enforcement, border control, immigration or asylum authorities to carry out identity checks in the presence of the person that is concerned in accordance with the conditions set out in Union and national law for such checks. In particular, law enforcement, border control, immigration or asylum authorities should be able to use information systems, in accordance with Union or national law, to identify a person who, during an identity check, either refuses to be identified or is unable to state or prove his or her identity, without being required by this Regulation to obtain prior authorisation. This could be, for example, a person involved in a crime, being unwilling, or unable due to an accident or a medical condition, to disclose their identity to law enforcement authorities.
9Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).
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