New rules at European borders: What airlines have to know about EES and ETIAS

Scope: When and for Whom Do the New Systems Apply?

The EES applies to third-country nationals entering the Schengen Area for a short stay (a maximum of 90 days within any 180-day period). This covers both visa-required travellers and those exempt from the visa requirement. Of particular note is the fact that holders of German residence permit, national visas or certificates of fiction (Fiktionsbescheinigungen) are also subject to the system. It captures biometric data (facial image and fingerprints) as well as travel document information, replacing the previous practice of manually stamping passports.

The complementary ETIAS (European Travel Information and Authorisation System) specifically affects the approximately 1.4 billion potential visa-exempt travellers from third countries such as the United States, the United Kingdom, and Brazil. These individuals will be required to apply online for a travel authorisation in advance.

• EES launch date: Official operations commenced on 12 October 2025 and is fully implemented save Cyprus and Ireland.
• ETIAS launch date: Full implementation is planned for the fourth quarter of 2026.

Implementation Status

However, to prevent severe congestion and border bottlenecks during the first peak travel season, the EU has granted additional flexibility. Member States may partially suspend the application of the EES for a period of 90 days (with an option to extend by a further 60 days), allowing for flexible handling through to early September 2026. Reports during the testing phase highlighted the necessity of these measures since airports such as Alicante, Vienna, Split and Charles-de-Gaulle had already experienced significant delays, malfunctioning scanners, and lengthy queues.

Requirements for Airlines: Obligations for Carriers

In practice, disputes will not turn on abstract definitions but on the concrete facts of each individual case. Key questions will include whether there was a real, physical shortage at the specific airport, whether that shortage actually prevented the operation of the particular flight, and whether the airline took all reasonable measures to avoid the disruption.

• Pre-boarding verification obligation: Airlines are required to verify, prior to boarding, that passengers are in possession of the necessary documents. Airlines must conduct an electronic query via the web interface or web service provided eu-LISA to determine a passenger’s status prior to boarding. The system will return a clear response indicating whether the passenger is permitted to board or not. Other visa or residence permit types continue to be verified manually.
• Data protection restriction: Carriers will not have access to full personal dossiers held within the EES. They may only check whether the permitted number of entries has already been exhausted.
• Identification of affected passengers: Airlines identify affected passengers based on their travel documents. All non-EU nationals travelling for a short stay are generally subject to the system. The query must be integrated into the existing check-in or boarding process.
• The Airport’s responsibility: Airports are not responsible for the airlines’ document-related verification obligations. However, they are responsible for providing the necessary infrastructure at border crossing points, including the installation of self-service kiosks an electronic gates to enable biometric data correction (facial image and fingerprints) and reduce processing times.

Airlines must prepare for a transitional phase during which technical instabilities within the overall system may cause delays in the check-in and boarding process. However, careful preparation in line with the requirements outlined above can help to lower these risks.

Waiting for passengers might therefore result in the airline losing its defence of “extraordinary circumstances” under Art. 5(3) of Regulation (EC) No. 26172004 and therefore becoming liable to pay compensation for delays of more than three hours. Should an airline nonetheless decide to wait, it will be essential to document the reasons and the balancing exercise carried out, particularly if the defence is to be based on EES- or ETIAS-related issues. Ideally, airlines should develop internal protocols that standardise both the decision-making process (i.e. waiting or not waiting) and the documentation requirements. The General Court made clear that any such balancing exercise must take into account the interests of the different groups of passengers affected.

Airlines face significant legal dilemma when passengers are delayed as a result of EES- or ETIAS-related issues. The judgment of the General Court of 4 March 2026 (T-0656/24) illustrates the legal risks associated with waiting for delayed passengers.

The Court held that an airline’s independent decision to wait for passengers held up in a security check, which is qualified as an extraordinary circumstance, may break a causal link between the original disruption and any resulting delay to subsequent flights.

Conclusion

The introduction of EES and ETIAS marks a fundamental shift in how Europe manages its external borders, with significant operational and legal implications for airlines. While the phased rollout provides some breathing room, the obligations for carriers are real and immediate: from electronic pre-boarding verification to the careful handling of system-related delays. The judgment of the General Court of 4 March 2026 serves as an early reminder that EES/ETIAS-related disruptions will not automatically shield airlines from compensation claims and that thorough documentation will be essential. We will closely monitor further developments, including the full implementation of ETIAS later this year and any upcoming judgments in this context.

For more information about the EES and ETIAS, how to adjust your processes and upcoming litigation, we are happy to assist you at any time!