L 35/56 Official Journal of the European Union 4.2.2009 REGULATION (EC) No 81/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 January 2009 amending Regulation (EC) No 562/2006 as regards the use of the Visa Information System (VIS) under the Schengen Borders Code THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- PEAN UNION, Having regard to the Treaty establishing the European Commu- nity, and in particular Article 62(2)(a) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty (1), Whereas: 1 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Com- munity Code on the rules governing the movement of per- sons across borders (Schengen Borders Code) (2) lays down the conditions, criteria and detailed rules governing checks at border crossing points and surveillance at the border, including checks in the Schengen Information System. Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regula- tion) (%) aims at improving the implementation of the com- mon visa policy. It also provides that the purposes of the VIS include facilitating both checks at external border crossing points and the fight against fraud. Regulation (EC) No 767/2008 lays down search criteria and conditions for the access of competent authorities, for the purpose of carrying out checks at external border crossing points, to data for verifying the identity of visa holders, the authenticity of the visa and whether the entry conditions are fulfilled, and for identifying any person who may not fulfil, or who no longer fulfils, the conditions for entry, stay or residence on the territory of the Member States. Since only a verification of fingerprints can confirm with certainty that a person wishing to enter the Schengen area is the person to whom the visa has been issued, provision should be made for the use of the VIS at external borders. (*) Opinion of the European Parliament of 2 September 2008 (not yet published in the Official Journal) and Council Decision of 27 Novem- ber 2008. (2) OJ L 105, 13.4.2006, p. 1. () OJ L 218, 13.8.2008, p. 60. () (10) (11) In order to verify whether the entry conditions for third- country nationals laid down in Article 5 of Regulation (EC) No 562/2006 are fulfilled and to manage their tasks suc- cessfully, border guards should use all necessary informa- tion available, including data which may be consulted in the VIS. In order to prevent circumvention of border crossing points where the VIS may be used and to guarantee its full effectiveness, there is a particular need to use the VIS in a harmonised way when entry checks are carried out at the external borders. Since in cases of repeated visa applications it is appropri- ate for biometric data to be reused and copied from the first visa application in the VIS, use of the VIS for entry checks at the external borders should be compulsory. The use of the VIS should entail a systematic search in the VIS using the number of the visa sticker in combination with a verification of fingerprints. However, given the potential impact of such searches on waiting times at bor- der crossing points, it should be possible, for a transitional period by way of derogation and in strictly defined circum- stances, to consult the VIS without a systematic verifica- tion of fingerprints. Member States should ensure that this derogation is used only where the conditions therefor are fully met and that the duration and frequency of applica- tion of this derogation is kept to a strict minimum at the individual border crossing points. Regulation (EC) No 562/2006 should therefore be amended accordingly. Since the objectives of this Regulation, namely the estab- lishment of the rules applicable on the use of the VIS at the external borders, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the European Convention for the Protection of Human Rights and Fun- damental Freedoms as well as in the Charter of Fundamen- tal Rights of the European Union.