EUROPEAN UNIONTHE EUROPEAN PARLIAMENT

THE COUNCIL
Brussels, 13 May 2024
(OR. en)2021/0428(COD)

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FRONT 53
MIGR 71
COVID-19 5
SAN 90TRANS 96
COMIX 87
CODEC 511
LEGISLATIVE ACTS AND OTHER INSTRUMENTS
Subject:

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL amending Regulation (EU) 2016/399 on a Union Code on therules governing the movement of persons across borders

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REGULATION (EU) 2024/…
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of …
amending Regulation (EU) 2016/399 on a Union Codeon the rules governing the movement of persons across borders

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 77(2), points (b) and (e) and Article 79(2), point (c), thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee1,
Having regard to the opinion of the Committee of the Regions2,
Acting in accordance with the ordinary legislative procedure3,

1
2
3

OJ C 323, 26.8.2022, p. 69.
OJ C 498, 30.12.2022, p. 114.
Position of the European Parliament of 24 April 2024 (not yet published in the Official
Journal) and decision of the Council of …

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Whereas:(1)

In accordance with Article 3(2) of the Treaty on European Union (TEU), the Union
comprises an area of freedom, security and justice that is free of internal border control, in
which the free movement of persons is ensured in conjunction with appropriate measures
regarding external border control, asylum, immigration and the prevention and combatingof crime.

(2)

The creation of an area in which the free movement of persons across internal borders is
ensured is one of the main achievements of the Union. It is important that the normal
functioning and strengthening of such an area, which is based on trust and solidarity, is acommon objective of the Union and the Member States which have agreed to take part init. In that respect, the temporary reintroduction of border control at internal borders should
be exceptional and used only as a last resort, where appropriate subject to consultation andcooperation between the Member States concerned and the Commission as guardian of theTreaties.

(3)

Regulation (EU) 2016/399 of the European Parliament and of the Council (Schengen
Borders Code)4 lays down rules governing the movement of persons to and from the area
without internal border control (the ‘Schengen Area’) as well as between the Member
States that participate in the Schengen Area.

4

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) (OJ L 77, 23.3.2016, p. 1).

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(4)

In recent years, the Schengen area has been subject to unprecedented challenges, which, by
their nature, were not confined to the territory of any single Member State. Such challenges
underscored the fact that the preservation of public policy and security in the Schengenarea is a shared responsibility requiring joined and coordinated action between Member
States and at Union level. They also highlighted gaps in the existing rules governing thefunctioning of the Schengen area both at external and internal borders and the need tocreate a stronger and more robust framework allowing for a more effective response tochallenges faced by the Schengen area in order to strengthen mutual trust and solidarity
and to ensure the absence of any controls on persons, whatever their nationality, whencrossing internal borders, while enabling Member States to provide an effective responseto challenges they face.

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(5)

Border control at external borders is in the interest not only of the Member State at whose
external borders it is carried out but of all Member States which have abolished internalborder control and the Union as a whole. Member States are required to ensure highstandards in the management of their external borders, including through enhanced
cooperation between border guards, police, customs and other relevant authorities. The
Union provides active support through the provision of financing support by the relevant
Union agencies and management of the Schengen Evaluation and Monitoring Mechanism
established by Council Regulation (EU) 2022/9225. The rules applicable to externalborders need to be reinforced in order to better respond to new challenges that haverecently emerged at the external borders.

5

Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and operation of anevaluation and monitoring mechanism to verify the application of the Schengen acquis, andrepealing Regulation (EU) No 1053/2013 (OJ L 160, 15.6.2022, p. 1).

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(6)

European integrated border management is based on the four-tier access control model, set
out in Regulation (EU) 2019/1896 of the European Parliament and of the Council6. Bordercontrol, including measures to facilitate legitimate border crossings, forms a key part of theEuropean integrated border management. In order to prevent and detect cross-border crimeat the external borders, in particular migrant smuggling, trafficking in human beings, andterrorism, Member States together with the European Border and Coast Guard Agency,
established by Regulation (EU) 2019/1896, should implement European integrated bordermanagement, based on the four-tier access control model.

6

Regulation (EU) 2019/1896 of the European Parliament and of the Councilof 13 November 2019 on the European Border and Coast Guard and repealing Regulations(EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).

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(7)

The COVID-19 pandemic has shown that threats to public health can require uniform rules
concerning travel restrictions for travel into the Union by third-country nationals. The
adoption of inconsistent and divergent measures at the external borders to address suchthreats negatively affects the functioning of the entire Schengen area, reduces predictability
for third-country travellers and people-to-people contacts with third countries. To prepare
the Schengen area for future challenges of a scale comparable to the Covid-19 pandemic, a
new mechanism should be established which would allow for the adoption and lifting, in atimely manner, of coordinated measures at Union level. The new mechanism at theexternal border should be applied in the event of a large-scale public health emergency
with a serious cross-border threat to health, recognised by the Commission at Union level
without prejudice to Regulation (EU) 2022/2371 of the European Parliament and of theCouncil7, taking into account information from competent national authorities.

(8)

In the event of a large-scale public health emergency, the mechanism should provide forthe adoption of an implementing Regulation setting out temporary restrictions on travel,
including restrictions on entry and minimum temporary health-related restrictions, and theconditions for lifting them. In view of the politically sensitive nature of such restrictions
which concern the right to enter the territory of Member States, implementing powers
should be conferred on the Council to adopt such an implementing Regulation (the‘implementing Regulation’), acting on a proposal from the Commission.

7

Regulation (EU) 2022/2371 of the European Parliament and of the Councilof 23 November 2022 on serious cross-border threats to health and repealing Decision
No 1082/2013/EU (OJ L 314, 6.12.2022, p. 26).

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(9)

Importantly, in line with the applicable obligations under Union and international law,
Union citizens and third-country nationals who, under agreements between the Union andits Member States, on the one hand, and those third countries, on the other hand, enjoy
rights of free movement equivalent to those of Union citizens, as well as their respective
family members should always be permitted to enter the Union. Residents in the Union
should also always be permitted to return to the Union, and in particular to the Member
State in which they legally reside. The implementing Regulation should lay downminimum temporary health-related restrictions to which those persons could be subject. As
regards third-country nationals legally residing in Ireland, Member States should, on areciprocal basis, allow those residents to return to Ireland by transiting through the territoryof the Member States. Ireland is invited to align its national policy with the restrictions on
travel to the European Union. The implementing Regulation should contain all necessary
elements to ensure that restrictions on travel are effective, targeted, non-discriminatory andproportionate to the evolving epidemiological situation. It should identify, where requiredby the nature of the large-scale public health emergency, the categories of persons
undertaking essential travel listed in Annex XI, part B, to be exempted from restrictions onentry and lay down the conditions under which it should be possible, exceptionally, fortravel restrictions to be imposed on those travellers. In addition, or alternatively, theimplementing Regulation should determine any geographical areas or third countries fromwhich it should be possible to subject travel to specific measures and establish a procedure
for the periodic review of the situation and of the travel restrictions, based on an objective
methodology and objective criteria applicable to that procedure, including, in particular,
the epidemiological situation. The implementing Regulation could specify the conditions
under which travel might be permitted such as testing, quarantine, self-isolation or any
other appropriate measures, such as a requirement to fill in a passenger locator form or touse other contact tracing tool, and having regard, in particular, to any Union systems
developed to facilitate travel under safe conditions, such as digital certification systems.
Where appropriate, the implementing Regulation could also set up a mechanism allowing
additional measures to be taken in the event the epidemiological situation dramaticallyworsens in one or more geographical areas.

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(10)

The effectiveness of restrictions on travel to the Union is premised on applying uniform
rules to third countries and third-country nationals. The application of uniform rules bymeans of the implementing Regulation should ensure the protection of public health andthus preserve the functioning of the area without internal border controls. Member States
could adopt stricter temporary health and other related restrictions than those laid down in
the implementing Regulation provided that such restrictions do not have a negative impact
on the functioning of the area without internal border control. In addition, Member States
could adopt restrictions on travel in the absence of an implementing Regulation. The
implementing Regulation should take into account the specific situation of the Overseas
Countries or Territories referred to in Article 355(2) of the Treaty on the Functioning of
the European Union (TFEU) and listed in Annex II thereto.

(11)

Transit within the Union for Union citizens and their family members, as well as forcertain categories of essential travellers should not be subject to temporary health-related
restrictions on travel to their final destination. Any temporary health-related restrictions tobe applied, should be applied upon arrival at the final destination.

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(12)

It is also necessary to reinforce the rules and safeguards in Union law in order to allow
Member States to act swiftly to counter situations of instrumentalisation. Such
instrumentalisation should be understood within the meaning of Article 1(4), point (b),first sentence, of Regulation (EU) …/… of the European Parliament and of the Council8+.
Situations in which hostile non-state actors are involved in organised crime, in particularmigrant smuggling, should not be considered as instrumentalisation of migrants when there
is no aim to destabilise the Union or a Member State. Furthermore, humanitarian assistanceshould not be considered as instrumentalisation of migrants when there is no aim todestabilise the Union or a Member State.

(13)

As regards Cyprus, Council Regulation (EC) No 866/20049 provides for specific rules that
apply to the line between the areas of the Republic of Cyprus in which the Government of
the Republic of Cyprus exercises effective control and those areas in which it does not
exercise effective control. Although that line does not constitute an external border, asituation where a third-country or hostile non-state actor encourages or facilitates the
movement of third-country nationals to cross that line is considered as instrumentalisation.

8

+

9

Regulation (EU) 2024/… of the European Parliament and of the Council of … addressing
situations of crisis and force majeure in the field of migration and asylum and amending
Regulation (EU) 2021/1147 (OJ L, …, ELI: …).
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 19/24 (2020/0277COD)) and insert the number, date and OJ reference of that
Regulation in the footnote.
Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 ofProtocol 10 to the Act of Accession (OJ L 161, 30.4.2004, p. 128).

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(14)

In particular, in a situation of instrumentalisation, it should, where necessary, be possible
for the Member State concerned to limit border traffic to the minimum by temporarily
closing some border crossing points, while guaranteeing genuine and effective access tointernational protection procedures. Any such decision should take into account whether
the European Council has acknowledged that the Union or one or more of its Member
States are facing a situation of instrumentalisation of migrants. Furthermore, any such
limitations should take full account of the rights of Union citizens, third-country nationals
who are beneficiaries of the right of free movement pursuant an international agreement
and third-country nationals who are long-term residents under national or Union law or are
holders of long-stay visas, as well as their respective family members. Such limitations
should also be applied in a manner that ensures that obligations related to access tointernational protection, in particular the principle of non-refoulement, are respected.

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(15)

The European Border and Coast Guard Agency assists Member States with implementing
the operational aspects of external border management, including information exchange,
the provision of equipment, capacity building and training to national border guards,
targeted information and risk analysis, the deployment of the European Border and Coast
Guard standing corps, as well as assistance in search and rescue operations for persons in
distress at sea, that are launched and carried out in accordance with Regulation(EU) No 656/2014 of the European Parliament and of the Council10. The European Borderand Coast Guard Agency’s new mandate offers considerable opportunities for Member
States to be assisted in border control tasks, including inter alia with regard to screening
and in return operations.

(16)

Technical means to prevent unauthorised crossings of the border could include modern
technologies such as drones and motion sensors, as well as mobile units, and, whereappropriate, all types of stationary and mobile infrastructure. The use of such technicalmeans, in particular, technologies capable of collecting personal data, needs to be based onand exercised in accordance with clearly defined provisions of national law.

10

Regulation (EU) No 656/2014 of the European Parliament and of the Councilof 15 May 2014 establishing rules for the surveillance of the external sea borders in thecontext of operational cooperation coordinated by the European Agency for theManagement of Operational Cooperation at the External Borders of the Member States of
the European Union (OJ L 189, 27.6.2014, p. 93).

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(17)

The power to adopt acts in accordance with Article 290 of the TFEU should be delegatedto the Commission to supplement Regulation (EU) 2016/399 in respect of addition toAnnex XI, Part B, of further categories of persons undertaking essential travel and inrespect of additional measures governing surveillance, including the development ofcommon minimum standards for border surveillance. Those common minimum standards
should take into account the type of borders, i.e. land, sea or air borders, the impact levels
attributed to each external border section in accordance with Article 34 of Regulation(EU) 2019/1896 and other relevant factors, such as geographical particularities. It is ofparticular importance that the Commission carry out appropriate consultations during its
preparatory work, including at expert level, and that those consultations be conducted inaccordance with the principles laid down in the Interinstitutional Agreementof 13 April 2016 on Better Law-Making11. In particular, to ensure equal participation in the
preparation of delegated acts, the European Parliament and the Council receive all
documents at the same time as Member States' experts, and their experts systematicallyhave access to meetings of Commission expert groups dealing with the preparation ofdelegated acts.

11

OJ L 123, 12.5.2016, p. 1, ELI: http://data.europa.eu/eli/agree_interinstit/2016/512/oj.

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(18)

In an area without internal border control, persons, whatever their nationality, should be
able to move freely and in security between Member States. In that regard, it should beclarified that the prohibition of border controls at internal borders does not affect thecompetence of Member States to carry out checks on their territory including in theirborder areas for purposes other than border control. It should, in particular, be clarified thatcompetent national authorities, including health or law enforcement authorities, remain, in
principle entitled to exercise public powers under national law provided that the effect of
those powers is not equivalent to border checks.

(19)

While the prohibition of border control at internal borders also extends to checks having
equivalent effect, checks by competent authorities of the Member States should not be
considered equivalent to border checks where they do not have border control as an
objective, where they are based on general police information and experience or publichealth information regarding possible threats to public security or public policy, where
they aim in particular to combat cross-border crime, reduce illegal immigration or containthe spread of an infectious disease with epidemic potential as identified by the European
Centre for Disease Control, where they are devised and executed in a manner clearly
distinct from systematic checks on persons at the borders, and where they are conducted attransport hubs, such as ports, train or bus stations and airports as well as freight terminals
or directly on board of passenger transport services, and where they are based on a risk
assessment.

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(20)

The reduction of illegal immigration and of cross-border crime linked to it, such as
trafficking in human beings, migrant smuggling and document fraud and other forms ofcross-border crime, could encompass measures allowing for the verification of the identity,
nationality and residence status of persons provided that such verifications are nonsystematic and carried out on the basis of a risk assessment.

(21)

The use of modern technologies to monitor traffic flows, in particular on motorways andother important roads determined by the Member States, can be instrumental in addressing
threats to public policy or internal security. The prohibition of border control at internalborders should not be understood as preventing the lawful exercise of police or otherpublic powers to carry out checks in the internal border areas. This includes checks thatentail the use of monitoring and surveillance technologies which are generally used in the
territory or that are based on a risk assessment for the purpose of protecting internal
security.

(22)

In order to allow for such technologies to be effective, it should be possible to apply
proportionate speed limits at road crossing-points.

(23)

In the exercise of police or other public powers by the competent authorities of theMember States in their territory, in particular in their border areas, it is important that theexercise of those powers does not have a disproportionate impact on the fluid traffic flowat road crossing-points at internal borders, in particular, by leading to excessive waitingtimes. In a spirit of dialogue and cooperation, it is important that Member States inform theneighbouring Member State of their actions, in particular when the action is expected tohave a more significant effect on cross-border traffic.

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(24)

The prohibition of border control at internal borders should not restrict the carrying out ofchecks provided for under Union law. The rules provided for in this Regulation, do nottherefore, affect the applicable rules regarding the carrying out of checks on passenger data
against relevant databases in advance of arrival.

(25)

It is necessary to ensure that checks carried out by Member States in exercise of national
competences remain fully consistent with an area that is free of internal border control. In
accordance with the case law of the Court of Justice of the European Union, the more
extensive the indications are that checks conducted by Member States at their border areas
have an effect equivalent to border control, having regard to the objective of such checks,
their territorial scope and possible differences compared to checks carried out in theremainder of the territory of the Member State concerned, the greater the need for strict
and detailed rules and limitations laying down the conditions for the exercise, by theMember States, of their police powers in a border area.

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(26)

In order to strengthen the functioning of the Schengen area, Member States should be able
to take additional measures to counter irregular movements between Member States.
Where national law enforcement authorities of a Member State apprehend third-country
nationals with no right to stay in that Member State, in border areas during checks
conducted by the competent authorities within a bilateral cooperation framework, which
could include, in particular, joint police patrols, it should be possible for those authorities
to transfer the third-country nationals to the Member State from which they entered thetransferring Member State provided that the third country nationals have no right to stay inthe transferring Member State. The Member State from where the third-country nationals
came directly should in turn be required to receive the apprehended third-country
nationals.

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(27)

The transfer procedure should not apply to third-country nationals who are holders ofUnion long-term residence permits and their family members in accordance with Council
Directive 2003/109/EC12, third-country nationals that are family members of Union
citizens that enjoy the right to free movement in accordance with Directive 2004/38/EC of
the European Parliament and of the Council13, third-country nationals who are holders of avalid long-stay visa and their family members in accordance with national law,third-country nationals who are holders of a valid short-stay visa, third-country nationals
who are entitled to visa-free travel within the Schengen area for a 90-day period inany 180-day period, in so far as they have not exceeded that 90-day period, applicants, as
defined in Article 3, point 13 of Regulation (EU) …/… of the European Parliament and of
the Council14+ and beneficiaries of international protection, as defined in Article 3, point 4
of Regulation (EU) …/… of the European Parliament and of the Council15++.

12
13

14

+

15

++

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country
nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on
the right of citizens of the Union and their family members to move and reside freely within
the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC,
90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).
Regulation (EU) …/… of the European Parliament and of the Council of … establishing acommon procedure for international protection in the Union and repealing Directive
2013/32/EU (OJ L, …, ELI: …).
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 16/24 (2016/0224/A (COD)) and insert the number, date and OJ reference of that
Regulation in the footnote.
Regulation (EU) …/… of the European Parliament and of the Council of … on standards forthe qualification of third-country nationals or stateless persons as beneficiaries ofinternational protection, for a uniform status for refugees or for persons eligible forsubsidiary protection and for the content of the protection granted, amending Council
Directive 2003/109/EC and repealing Directive 2011/95/EU of the European Parliament andof the Council (OJ L, …, ELI: …).
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 70/23 (2016/0223COD)) and insert the number, date, and OJ reference of that
Regulation in the footnote.

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With regard to applicants apprehended in the framework of bilateral cooperation, therelevant provisions of Regulation (EU) …/… of the European Parliament and of theCouncil16+ should apply.
(28)

The procedure by which a Member State should be able to transfer apprehended thirdcountry nationals with no right to stay to a Member State from where the person came
directly should take place swiftly but be subject to safeguards and be carried out in fullrespect of fundamental rights and the principle of non-discrimination enshrined in
Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), toprevent racial profiling. It should be possible for the authorities to carry out a verificationof relevant information immediately available to the authorities concerning the movementsof the persons concerned. Such information could include objective elements that would
allow the authorities to conclude that the person had recently travelled from anotherMember State, such as the possession of documents, including receipts or invoices,
evidencing recent travel from another Member State. Third-country nationals that are
subject to the transfer procedure should be provided with a reasoned decision in writing.
While the decision should be immediately enforceable, the third-country national should beafforded an effective remedy to appeal against or seek review of the transfer decision. That
remedy should not have suspensive effect.

16+

Regulation (EU) …/… of the European Parliament and of the Council of … on asylum andmigration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060 and
repealing Regulation (EU) No 604/2013 (OJ L, …, ELI: …).
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 21/24 (2020/0279(COD)) and insert the number, date and OJ reference of that
Regulation in the footnote.

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(29)

The transfer procedure provided for under this Regulation is optional and does not affectthe existing possibility for Member States to return illegally staying third-country nationals
in accordance with bilateral agreements or arrangements referred to in Article 6(3) of
Directive 2008/115/EC of the European Parliament and of the Council17 (the ‘Return
Directive’), where such persons are detected outside of border areas.

(30)

When making use of the transfer procedure provided for under this Regulation, Member
States should establish practical arrangements under their bilateral cooperation
frameworks, including with a view to, as a rule, avoiding the use of that transfer procedure,in particular on the sections of the internal borders where control has been temporarily
reintroduced or prolonged.

(31)

Where a third-country national who has been subject to a transfer decision is brought to theborder by a carrier, the competent authority are able in accordance with national law, tomake arrangements with the carrier so that the third-country national is transferred without
delay to the receiving Member State.

(32)

In the context of unannounced visits pursuant to Article 4(3) of Regulation (EU) 2022/922,
it is important that the Commission pay particular attention to the implementation of thetransfer procedure.

17

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008
on common standards and procedures in Member States for returning illegally staying thirdcountry nationals (OJ L 348, 24.12.2008, p. 98).

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(33)

In an area where persons are able to move freely, without internal frontiers, whichconstitutes one of the main achievements of the Union in accordance with Article 3(2)TEU, the reintroduction of border control at internal borders should remain an exception
and should only be a measure of last resort. Exceptions to and derogations from theprinciple of the free movement of persons are to be interpreted strictly. In order not tocompromise the very principle that there is to be no internal border control, as enshrined in
Article 3(2) TEU and reiterated in Article 67(2) TFEU, the reintroduction of border control
at internal borders on account of the same threat should be for clearly defined periods inaccordance with this Regulation.

(34)

In exceptional cases, addressing threats to the Schengen area might, as a last resort, require
the adoption, by the Member States, of measures at the internal borders. As the freemovement of persons is affected by the temporary reintroduction of border control atinternal borders, any decision to reintroduce such border control should be taken inaccordance with commonly agreed criteria and should be duly notified to the Commission,
the Parliament and the Council or be recommended by a Union institution. Member Statesremain competent to determine the need for the temporary reintroduction or prolongationof border control. Under the existing rules, the reintroduction of border control at internalborders is provided for in circumstances where a serious threat to internal security or
public policy manifests itself in a single Member State for a limited period of time. In
particular, terrorism and organised crime, large-scale public health emergencies or large
scale or high profile international events such as sporting, trade or political events canamount to a serious threat to public policy or internal security.

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(35)

Furthermore, a serious threat to public policy or internal security could also result fromsudden large- scale unauthorised movements of third-country nationals between theMember States, where that creates a situation putting a substantial strain on the overall
resources and capacities of well-prepared competent authorities and is likely to put at risk
the overall functioning of the area without internal border control, and where the othermeans provided for under this Regulation are not sufficient to address those inflows andmovements. In this context, Member States should be able to rely on objective andquantified reports on unauthorised movements whenever available, in particular, when
produced on a regular basis by the relevant Union agencies in line with their respective
mandates.

(36)

The COVID-19 pandemic demonstrated the need for a Union-wide mechanism that would
apply to situations where, within the Schengen area, a large-scale public health emergency
affects several Member States at the same time, putting at risk the well-functioning of the
Schengen area. The new Schengen area safeguarding mechanism should permit
coordinated solutions to protect the interests of persons entitled to benefit from the area
without internal border control, by maximising the effectiveness of the measures taken
while minimising their negative side-effects.

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(37)

The new Schengen area safeguard mechanism should allow the Council to adopt, upon a
proposal by the Commission, a decision authorising the temporary reintroduction or
prolongation of border control at internal borders, where a large-scale public healthemergency has been recognised at Union level. Given the politically sensitive nature ofsuch a decision which regulates the possibility for Member States to reintroduce or prolong
border control at internal borders in particular circumstances, implementing powers to
adopt a decision should be conferred on the Council, acting on a proposal from theCommission. That decision should include any appropriate mitigating measures.

(38)

The establishment of the new Schengen area safeguard mechanism should not affect theright of Member States to have prior recourse to unilateral measures in accordance withthis Regulation, where the situation so requires. However, once adopted, the Union
measure should become the single basis for a coordinated response to the threat identified.

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(39)

In order to ensure compliance with the principle of proportionality, the decision of theCouncil should be adopted for a limited period of time of up to six months that may be
prolonged subject to regular review upon a proposal from the Commission, as long as thelarge-scale public health emergency persists. The initial decision should include anassessment of the expected impact of the measures adopted, including its adverse sideeffects, with a view to determining whether border controls at internal borders are justified
or whether less restrictive measures could be applied in their place in an effective manner.
Subsequent decisions should take account of the evolution of the threat to public health.
The Member States should immediately notify the European Parliament, the Commission
and the other Member States of the reintroduction of border control at internal borders inaccordance with the decision of the Council.

(40)

The reintroduction of border control at internal borders, whether on the basis of unilateraldecisions of the Member States or at a Union level, has serious implications for thefunctioning of the Schengen area and the right to free movement. In order to ensure thatany decision to reintroduce border control is taken only where necessary, as a measure oflast resort, the decision on temporary reintroduction or prolongation of border control
should be based on common criteria, and be strictly necessary and proportionate.

(41)

In accordance with the case-law of the Court of Justice of the European Union, aderogation from the fundamental principle of free movement of persons must be
interpreted strictly and the concept of public policy presupposes the existence of a genuine,
present and sufficiently serious threat affecting one of the fundamental interests of society.

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(42)

In the first instance, Member States should assess the appropriateness of temporary bordercontrol at internal borders having regard to the nature of the serious threat identified aswell as the appropriateness of alternative measures to pursue the same objectives as bordercontrol at internal borders, such as proportionate checks as carried out in the exercise ofpolice or other public powers or through forms of police cooperation as provided for under
Union law, including the possibility to use the transfer procedure, or common measures
regarding temporary travel restrictions. In this context, the Member States should pay
particular attention to and assess the likely impact of border control at internal borders on
the movement of persons within the area without internal border control and thefunctioning of the cross-border regions. This assessment should be part of the notificationthat Member States are required to transmit to the Commission, the Parliament and theCouncil. In the case of prolongation of border control at internal borders for foreseeable
events beyond an initial period of six months, the Member State should also carry out arisk assessment. That risk assessment should include details on the scale and anticipatedevolution of the identified serious threat, information on how long that serious threat is
expected to persist and which sections of the internal borders are affected, information on
coordination measures with other Member States impacted by such measures and themeasures that the Member State concerned has taken and intends to take to alleviate theidentified serious threat, with a view to lifting border control at internal borders in order tomaintain the principle of free movement.

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(43)

In order to limit harmful consequences resulting from the reintroduction of border control
at internal borders, any decision to reintroduce border control at internal borders should beaccompanied by mitigating measures. Such measures should include measures to assure asmooth operation of transit of goods and transport personnel and seafarers by theestablishment of ‘green lanes’. In addition, and to take account of the need to ensure themovement of persons whose activities may be essential for preserving the supply chain or
the provision of essential services, Member States could also apply the existing guidelines
on cross-border workers set out in the Communication from the Commissionof 30 March 2020 entitled ‘Guidelines concerning the exercise of the free movement ofworkers during COVID-19 outbreak’. The rules for the reintroduction of border control atinternal borders should, therefore, take account of the guidelines and recommendations
adopted throughout the COVID-19 pandemic as a solid safety net for the Single Market,
for the purpose of assuring that they are applied by the Member States as mitigating
measures during reintroduced border control at internal borders. Measures should inparticular be identified with a view to ensuring the uninterrupted functioning of the Single
Market and safeguarding the interests of cross-border regions and of ‘twin cities’ including
for instance authorisations or derogations for the inhabitants of cross-border regions.

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(44)

The notification to be provided by the Member States should be decisive when assessing
compliance with the criteria and conditions for a temporary reintroduction of bordercontrol at internal borders. In order to ensure the proper monitoring of border control thathas been reintroduced at internal borders, and to improve the quality of the information it
receives, the Commission should adopt an implementing act to establish a template for the
notification of reintroduction of border control at internal borders. Member States should
not be required to provide all the information in cases justified on public security grounds,
taking into account the confidentiality of ongoing investigations. Member States should beentitled to classify all or parts of the information provided in the notification, without
prejudice to the functioning of appropriate and secure channels.

(45)

In order to ensure that border control at internal borders is truly a last resort measureapplied only for as long as necessary and in order to allow for assessing the necessity andproportionality of border control at internal borders to address foreseeable threats and toallow the Commission to assess that such controls are an exceptional measure, Member
States should prepare a risk assessment to be submitted to the Commission when bordercontrol at internal borders is prolonged beyond an initial period of 6 months in response toforeseeable threats. The Member States must in particular, explain, the scale and evolutionof the identified serious threat, including how long the identified serious threat is expected
to persist and which sections of the internal borders may be affected, why alternative
measures will not resolve the identified threat, as well as their coordination measures withthe other Member States that are impacted or likely to be impacted by border control atinternal borders.

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(46)

The Commission should be entitled to request additional information based on the
notification received, including on the risk assessment or cooperation and coordination
measures with the Member States affected by the planned prolongation of border control atinternal borders. Where the notification does not comply with the minimum requirements,
the Commission should discuss the notification with the Member State concerned andrequest additional information or request that Member State to complete its initial
notification.

(47)

At least once per year, the Commission should report to the European Parliament and to
the Council jointly on the functioning of the area without internal border control (the ‘Stateof Schengen report’). The Commission should be able to also discuss that report separately
with the European Parliament and the Council. The report should include a list of alldecisions to reintroduce border control at internal borders taken during the relevant year, as
well as the actions taken by the Commission with regard to border control reintroduced atinternal borders. The report should pay particular attention to the border control that has
been in place for longer than 12 months. It should also include an assessment of thenecessity and proportionality of the reintroduction and prolongations of border control atinternal borders in the period covered by that report as well as information on the trends
within the area without internal border control as regards the unauthorised movements ofthird-country nationals, taking into account available information from the relevant Union
agencies and data analysis from relevant information systems. The State of Schengen
report should also cover the reporting obligations resulting from Article 20 of the
Schengen Evaluation and Monitoring Mechanism.

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(48)

The State of Schengen report should be accompanied by the report to be provided pursuant
to Article 25 of Regulation (EU) 2022/922.

(49)

The mechanism for the temporary reintroduction of border control at internal borders inurgent situations or to address foreseeable threats should provide for a possibility, for theCommission to organise consultations between Member States. A consultation should beorganised by the Commission where a Member State directly affected so requests.
Relevant Union agencies should be involved in this process in order to share theirexpertise, where appropriate. Such consultations should look at the possibility of applying
alternative measures, and if necessary practical arrangements for carrying out bordercontrol at internal borders and their duration. Where the Commission or a Member State
has issued an opinion expressing concerns regarding the reintroduction of border control,
such consultations should be mandatory.

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(50)

The Commission and Member States should retain the possibility to express any concern
as regards the necessity and proportionality of a decision of a Member State to reintroduce
border control at internal borders for reason of urgency or to address a foreseeable threat.
Where internal border control is reintroduced and prolonged for foreseeable threats for
combined periods exceeding 12 months, the Commission should issue an opinion assessing
the necessity and proportionality of such border control at internal borders. Where a
Member State considers that there is a major exceptional situation justifying the continued
need for border control at internal borders for a period exceeding 2 years, additionalsafeguards should be set in terms of risk assessment. The notification by the Member State
concerned should include the measures it intends to adopt, in cooperation with otherMember States where appropriate, enabling the threat to be addressed as well as apresentation of the means, actions, conditions and timeline considered with a view tolifting border control at internal borders as soon as possible in order for the principle offree movement to be maintained. The Commission should in such a case issue a new
opinion. Such an opinion is without prejudice to the enforcement measures, including
infringement actions, which the Commission, in its role as guardian of the Treaties, shouldbe able to take at any time against any Member State for failure to comply with its
obligations under Union law. Where an opinion is issued, the Commission should launch
consultations with the Member States concerned. Although in the area without internalborder control a serious threat to public policy or internal security in a Member State is notnecessarily limited in time, in order to maintain the principle of free movement, it isnecessary to limit the maximum duration of border control at internal borders based on thesame serious threat, which should not exceed 2 years. In exceptional circumstances andunder certain conditions Member States should be able to prolong border control at internalborders for two further periods of six months. In any event, border control at internalborders based on the same serious threat should not exceed 3 years in total.

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(51)

In order to enable the ex post analysis of the decision on the temporary reintroduction ofborder control at internal borders, Member States should remain obliged to submit a reporton the reintroduction of border control at internal borders to the European Parliament, theCouncil and the Commission once they lift that border control. Where the controls are kept
in place for prolonged periods of time, another such report should be submitted
after 12 months, and again 12 months thereafter if, exceptionally, controls are maintained.
The report should outline, in particular, the initial and follow-up assessment of the need forborder control at internal borders and the respect of the criteria for reintroduction of thatborder control. The Commission should adopt an implementing act to establish a templatefor such reports and make the template available online.

(52)

When implementing this Regulation, Member States are not to discriminate against
persons on grounds of sex, race, colour, ethnic or social origin, genetic features, language,
religion or belief, political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation.

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(53)

The competent authorities referred to in this Regulation should, in all activities undertakenby them under this Regulation, including when using their powers to carry out checks,
fully respect the rules on data protection under Union law. Regulation (EU) 2016/679 of
the European Parliament and of the Council18 or Directive (EU) 2016/680 of the European
Parliament and of the Council19 apply to the processing of personal data by competent
national authorities for the purposes of this Regulation, in their respective field of
application.

(54)

Since the objective of this Regulation, namely to strengthen the functioning of the
Schengen area, cannot be sufficiently achieved by Member States acting alone, as anamendment of the common rules established at Union level is necessary, but can rather bebetter achieved at Union level, the Union may adopt measures, in accordance with theprinciple of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle
of proportionality, as set out in that Article, this Regulation does not go beyond what isnecessary in order to achieve that objective.

18

19

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 thefree movement of such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1,
ELI: http://data.europa.eu/eli/reg/2016/679/oj).
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 competentauthorities 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 suchdata, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89,
ELI: http://data.europa.eu/eli/dir/2016/680/oj).

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(55)

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark,annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of thisRegulation and is not bound by it or subject to its application. Given that this Regulationbuilds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that
Protocol, decide within a period of six months after the Council has decided on thisRegulation whether it will implement it in its national law.

(56)

This Regulation constitutes a development of the provisions of the Schengen acquis, inwhich Ireland does not take part, in accordance with Council Decision 2002/192/EC20;
Ireland is therefore not taking part in the adoption of this Regulation and is not bound by itor subject to its application.

20

Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to takepart in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20, ELI:
http://data.europa.eu/eli/dec/2002/192/oj).

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(57)

As regards Iceland and Norway, this Regulation constitutes a development of theprovisions of the Schengen acquis within the meaning of the Agreement concluded by theCouncil of the European Union and the Republic of Iceland and the Kingdom of Norway
concerning the latters’ association with the implementation, application and developmentof the Schengen acquis21, which fall within the area referred to in Article 1, point A ofCouncil Decision 1999/437/EC22.

(58)

As regards Switzerland, this Regulation constitutes a development of the provisions of the
Schengen acquis within the meaning of the Agreement between the European Union, theEuropean Community and the Swiss Confederation on the Swiss Confederation’s
association with the implementation, application and development of the Schengenacquis23 which fall within the area referred to in Article 1, point A, of Decision
1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC24.

21
22

23
24

OJ L 176, 10.7.1999, p. 36, ELI: http://data.europa.eu/eli/agree_internation/1999/439(1)/oj.
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the applicationof the Agreement concluded by the Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the association of those two States with theimplementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999,
p. 31, ELI: http://data.europa.eu/eli/dec/1999/437/oj).
OJ L 53, 27.2.2008, p. 52.
Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of theEuropean Community, of the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation’s association with theimplementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008,
p. 1, ELI: http://data.europa.eu/eli/dec/2008/146/oj).

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(59)

As regards Liechtenstein, this Regulation constitutes a development of the provisions of
the Schengen acquis within the meaning of the Protocol between the European Union, theEuropean Community, the Swiss Confederation and the Principality of Liechtenstein on
the accession of the Principality of Liechtenstein to the Agreement between the European
Union, the European Community and the Swiss Confederation on the Swiss
Confederation’s association with the implementation, application and development of the
Schengen acquis25 which fall within the area referred to in Article 1, point A, of Decision
1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU26.

(60)

This Regulation is without prejudice to the application of Directive 2004/38/EC.

(61)

This Regulation respects fundamental rights and observes the principles recognised inparticular by the Charter.

(62)

Regulation (EU) 2016/399 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

25
26

OJ L 160, 18.6.2011, p. 21.
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of theEuropean Union, of the Protocol between the European Union, the European Community,
the Swiss Confederation and the Principality of Liechtenstein on the accession of the
Principality of Liechtenstein to the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation’s association with theimplementation, application and development of the Schengen acquis, relating to theabolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011,
p. 19, ELI: http://data.europa.eu/eli/dec/2011/350/oj).

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Article 1
Regulation (EU) 2016/399 is amended as follows:(1)

Article 2 is amended as follows:(a)point 12 is replaced by the following:‘12. “border surveillance” means the surveillance of borders between bordercrossing points and the surveillance of border crossing points outside fixed
opening hours, including preventative measures, to prevent or detect
unauthorised border crossings or the circumvention of border checks, tocontribute to raising situational awareness, to counter cross-border criminality
and to take measures against persons who have crossed the border illegally;’;(b)

the following points are added:‘27. “large-scale public health emergency” means a public health emergency, that isrecognised at Union level by the Commission, taking into account informationfrom competent national authorities, where a serious cross-border threat tohealth could have large-scale repercussions on the exercise of the right to freemovement.

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28.

“essential travel” means travel by a person who is exempted from restrictions
on entry pursuant to Article 21a(4) or (5), in connection with an essentialfunction or need, taking into account any applicable international obligations of
the Union and of the Member States;

29.

“non-essential travel” means travel other than essential travel;

30.

“transport hubs” means airports, sea or river ports, train or bus stations andfreight terminals.’;(2)

in Article 5, the following subparagraph is added to paragraph 3:‘Member States may, where a large number of migrants attempt to cross their externalborders in an unauthorised manner, en masse and using force, take the necessary measures
to preserve security, law and order.’;(3)

in Article 5, the following paragraph is added:‘4.

Member States may, in particular in a situation of instrumentalisation of migrants as
referred to in Article 1(4), point (b) first sentence of Regulation (EU) …/… of theEuropean Parliament and of the Council*+, temporarily close, or limit the opening
hours of, specific border crossing points as notified pursuant to paragraph 1, second
subparagraph of this Article, where the circumstances so require.

+

OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 19/24 (2020/0277COD)) and insert the number, date and OJ reference of that
Regulation in the asterisk footnote below this amending point.

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Any measures pursuant to the first subparagraph of this paragraph and paragraph 3,
second subparagraph of this Article, shall be implemented in a manner that is
proportionate and that takes full account of the rights of:(a)persons enjoying the right of free movement under Union law;(b)third-country nationals who are long-term residents under Council Directive
2003/109/EC**, persons deriving their right to reside from other instruments ofUnion or national law or who hold national long-stay visas, as well as theirrespective family members; and(c)third-country nationals seeking international protection.

________________***

Regulation (EU) …/… of the European Parliament and of the Council of …
addressing situations of crisis and force majeure in the field of migration and asylum
and amending Regulation (EU) 2021/1147 (OJ L, …, ELI: …).
Council Directive 2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).’;PE-CONS 40/24

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(4)

Article 13 is replaced by the following:‘Article 13
Border surveillance1.

The main purpose of border surveillance shall be to prevent or detect unauthorisedborder crossings, to contribute to raising situational awareness, to countercross-border criminality and to take measures against persons who have crossed theborder illegally. It shall also involve the carrying out of risk analyses. Without
prejudice to Articles 3 and 4, a person who has crossed a border illegally and who
has no right to stay on the territory of the Member State concerned shall beapprehended and made subject to procedures respecting Directive 2008/115/EC.

2.

The border guards shall use all necessary resources, including stationary or mobile
units, to carry out border surveillance. Border surveillance shall be carried out insuch a way as to prevent and discourage persons from unauthorised border crossings
between border crossing points or from circumventing the checks at border crossing
points, and shall be carried out in full compliance with the obligations laid down in
Article 4.

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3.

Surveillance between border crossing points shall be carried out by border guards
whose numbers and methods shall be adapted to existing or foreseen risks andthreats. It shall make use of situational pictures, to be better able to reduce the loss of
lives of migrants at, along or in proximity of the external borders. It shall involve
frequent and sudden changes to surveillance periods and other methods ortechniques, in order to prevent or detect unauthorised border crossings effectively.

4.

Surveillance shall be carried out by stationary or mobile units which perform theirduties by patrolling or stationing themselves at places known or perceived to besensitive. The aim of such surveillance is to prevent unauthorised border crossings or
to apprehend individuals in connection with an unauthorised crossing of the externalborder. Surveillance may also be carried out by using technical means, including
electronic means, equipment, surveillance systems and, where appropriate, all typesof stationary and mobile infrastructure.

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5.

The Commission shall be empowered to adopt delegated acts in accordance with
Article 37 of this Regulation concerning additional measures governing surveillance,
including the development of common minimum standards for border surveillance.
Those common minimum standards shall take into account the type of borders,i.e. land, sea or air borders, the impact levels attributed to each external bordersection in accordance with Article 34 of Regulation (EU) 2019/1896 of the European
Parliament and of the Council* and other relevant factors, such as geographicalparticularities.

________________*

Regulation (EU) 2019/1896 of the European Parliament and of the Councilof 13 November 2019 on the European Border and Coast Guard and repealing
Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).’;(5)Chapter V is renamed as follows: ‘Specific measures relating to the external borders’;(6)

the following Article is inserted:‘Article 21a
Temporary restrictions on travel to the Union
1.

This Article shall apply to large-scale public health emergencies.

2.

The Council, on the basis of a proposal by the Commission, may adopt an
implementing Regulation providing for temporary restrictions on travel to theMember States to be applied at the external borders.

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Temporary restrictions on travel may include temporary restrictions on entry to theMember States and temporary health-related restrictions that are necessary for theprotection of public health in the area without internal border control. Those
temporary healthrelated restrictions may include testing, quarantine and selfisolation.
Temporary restrictions on travel to the Union shall be proportionate and nondiscriminatory. Where a Member State adopts stricter restrictions than those laid
down in the implementing act, those restrictions shall not have a negative impact on
the functioning of the area without internal border control. Temporary health-related
restrictions on persons enjoying the right of free movement under Union law shallcomply with Directive 2004/38/EC at all times.
3.

The following categories of persons shall be exempted from the restrictions on entry,
independent of the purpose of their travel:(a)persons enjoying the right of free movement under Union law;(b)third-country nationals who are long-term residents under Directive
2003/109/EC, persons deriving their right to reside from other instruments ofUnion law or national law, including beneficiaries of international protection or
persons who hold national long-stay visas, as well as their respective family
members.

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4.

Categories of persons listed in Annex XI, part A, shall be exempted from restrictions
on entry.

5.

Any category of persons listed in Annex XI, part B, shall be exempted fromrestrictions on entry where that category is included in the implementing regulationreferred to in paragraph 2.

6.

The implementing Regulation referred to in paragraph 2 shall, where appropriate:(a)identify, where required by the nature of the large-scale public healthemergency, the categories of persons undertaking essential travel listed in
Annex XI, part B, to be exempted from restrictions on entry;(b)determine any geographical areas or third countries from which travel may besubject to restrictions or exemptions from restrictions, and establish aprocedure for the periodic review of the situation of such areas or countries andof the restrictions on travel imposed on the basis of objective methodology andobjective criteria, including, in particular, the epidemiological situation;(c)lay down the conditions under which non-essential travel may be restricted or
exempted from restrictions, including proof to be presented to support theexemption and the conditions relating to the duration and nature of stay in theareas or countries referred to in point (b);PE-CONS 40/24

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(d)

refer to minimum temporary health-related restrictions to which persons
referred to in paragraph 3, points (a) and (b), may be subject;(e)by way of derogation from paragraphs 4 and 5 lay down the conditions underwhich travel restrictions may be imposed on persons undertaking essential
travel;7.

Restrictions on entry to the Member States for persons undertaking essential travel
shall be imposed only exceptionally, for a strictly limited period of time, until
sufficient information about the large-scale public health emergencies referred to inparagraph 1,, is available and until the Council, on a proposal by the Commission,
identifies and adopts alternative health-related restrictions that are necessary toprotect public health and that are to be applied to those persons,’;

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(7)

Article 23 is replaced by the following:‘Article 23
Checks within the territory
The absence of border control at internal borders shall not affect:(a)the exercise of police or other public powers by the competent authorities of theMember States in their territory, including in their internal border areas, as conferredon them by national law, insofar as the exercise of those powers does not have aneffect equivalent to border checks. The exercise of such powers may include, whereappropriate, the use of monitoring and surveillance technologies generally used in
the territory for the purposes of addressing threats to public security or public policy.
The exercise by competent authorities of their powers shall not, in particular, beconsidered equivalent to the exercise of border checks when the measures fulfil eachof the following conditions:(i)do not have border control as an objective;

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(ii)

are based on general police information or, where the aim is to contain the
spread of an infectious disease, on public health information, and theexperience of the competent authorities regarding possible threats to public
security or public policy and aim, in particular, to:–combat cross-border crime;–

reduce illegal immigration; or–contain the spread of an infectious disease with epidemic potential as
identified by the European Centre for Disease Control;(iii) are devised and executed in a manner that is clearly distinct from systematic
checks on persons at the external borders, including where they are conducted
at transport hubs or directly on board of passenger transport services andprovided that they are based on a risk assessment;(b)

the possibility for the competent authorities of a Member State or for carriers to carryout security checks on persons at transport hubs in accordance with national law,provided that such checks are also carried out on persons travelling within a Member
State;(c)the possibility for a Member State to provide by law for an obligation to hold or
carry papers and documents;

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(d)

the possibility for a Member State to provide by law for an obligation for
third-country nationals to report their presence on its territory and an obligation for
managers of establishments providing accommodation to ensure that third-country
nationals complete and sign registration forms, with the exception of accompanying
spouses or accompanying minors or members of travel groups, pursuant to theprovisions of Articles 22 and 45, respectively, of the Convention implementing the
Schengen Agreement of 14 June 1985 between the Governments of the States of the
Benelux Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common borders (‘the Schengen
Convention’).’;(8)

the following Article is inserted:‘Article 23a
Procedure for transferring persons apprehended in internal border areas
1.

Without prejudice to Article 22, this Article lays down the procedure for the transfer
of a third-country national apprehended in border areas as referred to in Article 23, incircumstances where the following conditions are fulfilled:(a)the third-country national is apprehended during checks involving thecompetent authorities of both Member States within the framework of bilateral
cooperation, which may include, in particular, joint police patrols, provided
that the Member States have agreed to use such a procedure within thatbilateral cooperation framework; andPE-CONS 40/24

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(b)

there are clear indications that the third-country national has arrived directlyfrom the other Member State, and it is established that the third‑ country
national has no right to stay on the territory of the Member State in which he or
she has arrived, on the basis of information immediately available to theapprehending authorities, including statements from the person concerned,
identity, travel or other documents found on that person or the results ofsearches carried out in relevant national and Union databases.

The procedure laid down in paragraphs 1 and 2 shall not apply to applicants, as
defined in Article 3, point (13) of Regulation (EU) …/… of the European Parliamentand of the Council*+ or to beneficiaries of international protection, as defined in
Article 3, point (4) of Regulation (EU) …/… of the European Parliament and of theCouncil**++.
When transferring a third-country national who the transferring Member State
presumes to be a minor, that transferring Member State shall inform the receiving
Member State of that presumption and both Member States shall ensure that allmeasures are taken in the best interests of the child and in accordance with theirrespective national laws.

+++

OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 16/24 (2016/0224/A (COD)) and insert the number, date and OJ reference of that
Regulation in the asterisk footnote below this amending point.
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS 70/23 (2016/0223 (COD)) and insert the number, date and OJ reference of that
Regulation in the asterisk footnote below this amending point.

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2.

By way of derogation from Article 6(1) of Directive 2008/115/EC, the competentauthorities of a Member State may, where the conditions laid down in paragraph 1 ofthis Article are met, decide to immediately transfer the third‑ country national
concerned to the Member State from which the person arrived, in accordance withthe procedure set out in Annex XII.

3.

Third-country nationals apprehended in border areas and transferred under theprocedure in this Article shall have the right to appeal. Appeals against the transfer
decision shall be conducted in accordance with national law of the transferring
Member State. Those third-country nationals shall be provided with an effective
remedy in accordance with Article 47 of the Charter. A written indication of contact
points able to provide information on representatives competent to act on behalf of
those third-country nationals in accordance with national law shall also be given tothem by the transferring Member State in a language that they understand or arereasonably supposed to understand. Lodging such an appeal shall not havesuspensive effect.

4.

Where a transferring Member State applies the procedure referred to in paragraph 2,
the receiving Member State shall be required to take all measures necessary toreceive the third-country national concerned in accordance with the procedures set
out in Annex XII. All relevant provisions of Directive 2008/115/EC shall apply inthe receiving Member State.

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5.

Member States shall define practical arrangements under their bilateral cooperation
frameworks, including with a view to, as a rule, avoiding the use of the procedurereferred to in this Article, in particular on the sections of the internal borders whereborder control has been reintroduced or prolonged.

6.

The procedure laid down in this Article is without prejudice to existing bilateralagreements or arrangements as referred to in Article 6(3) of Directive 2008/115/EC.

7.

From … [one year from the date the entry into force of this amending Regulation]
and annually thereafter, Member States shall submit to the Commission the data
recorded in accordance with Annex XII, part A, point 4.

________________***

Regulation (EU) …/… of the European Parliament and of the Council of …
establishing a common procedure for international protection in the Union andrepealing Directive 2013/32/EU (OJ L, …, ELI: …).
Regulation (EU) …/… of the European Parliament and of the Council of … onstandards for the qualification of third-country nationals or stateless persons as
beneficiaries of international protection, for a uniform status for refugees or for
persons eligible for subsidiary protection and for the content of the protection
granted, amending Council Directive 2003/109/EC and repealing Directive
2011/95/EU (OJ L, …, ELI: …).’;

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(9)

the first paragraph of Article 24 is replaced by the following:‘Member States shall remove all obstacles to fluid traffic flow at road crossing-points atinternal borders, in particular any speed limits not based exclusively on road-safety
considerations or required for the use of the technologies referred to in Article 23,
point (a).’;(10)

Article 25 is replaced by the following:‘Article 25
General framework for the temporary reintroduction or prolongation of border control atinternal borders
1.

Where, in the area without internal border control, there is a serious threat to public
policy or internal security in a Member State, that Member State may exceptionally
reintroduce border control at all or specific parts of its internal borders.
A serious threat to public policy or internal security may, in particular, be considered
to arise from:(a)terrorist incidents or threats, and threats posed by serious organised crime;(b)large-scale public health emergencies;

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(c)

an exceptional situation characterised by sudden large-scale unauthorised
movements of third-country nationals between the Member States, putting asubstantial strain on the overall resources and capacities of well-prepared
competent authorities and which is likely to put at risk the overall functioningof the area without internal border control, as evidenced by information
analysis and all available data, including from relevant Union agencies;(d)2.

large scale or high profile international events;

In all cases, border control at internal borders shall be reintroduced only as a measureof last resort. The scope and duration of the temporary reintroduction of bordercontrol shall not exceed what is strictly necessary to respond to the serious threat
identified.
Border control may only be reintroduced or prolonged pursuant to Articles 25aand 28 where a Member State has established that such a measure is necessary andproportionate, taking into account the criteria referred to in Article 26(1), and, wheresuch control is prolonged, also taking into account the risk assessment referred to in
Article 26(2). Border control may also be reintroduced in accordance with Article 29,
taking into account the criteria referred to in Article 30.

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3.

Where the same serious threat persists, border control at internal borders may be
prolonged in accordance with Articles 25a or 29, or, where the threat relates tolarge-scale public health emergencies, Article 28.
The same serious threat shall be considered to persist where the justification put
forward by the Member State for prolonging border control is based on the samegrounds as those that justified the initial reintroduction of the border control.’;(11)

the following Article is inserted:‘Article 25a
Procedure for cases requiring action due to unforeseeable or foreseeable events
1.

Where a serious threat to public policy or internal security in a Member State isunforeseeable and requires immediate action, the Member State may, on an
exceptional basis, immediately reintroduce border control at internal borders.

2.

At the same time as reintroducing border control at internal borders under paragraph
1 of this Article, the Member State shall notify the European Parliament, the Council,
the Commission and the other Member States of the reintroduction of border control,in accordance with Article 27(1).

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3.

Where a Member State reintroduces border control at internal borders underparagraph 1, the border control shall remain in place no longer than 1 month. If theserious threat to public policy or internal security persists for longer than that period,
the Member State may prolong border control at internal borders for further periods,
up to a maximum duration not exceeding three months.

4.

Where a serious threat to public policy or internal security is foreseeable in a
Member State, the Member State shall notify the European Parliament, the Council,
the Commission and the other Member States in accordance with Article 27(1), at thelatest 4 weeks before the planned reintroduction of border control, or as soon as
possible where the circumstances giving rise to the need to reintroduce bordercontrol at internal borders become known to the Member State less than 4 weeks
before the planned reintroduction.

5.

Where paragraph 4 of this Article applies, and without prejudice to paragraph 6,
border control at internal borders may be reintroduced for a period of up to six
months. Where the serious threat to public policy or internal security persists beyond
that period, the Member State may prolong the border control at internal borders forrenewable periods of up to 6 months. Any prolongation shall be notified to theEuropean Parliament, the Council and the Commission and the other Member Statesin accordance with Article 27 and within the time limits referred to in paragraph 4 ofthis Article. Subject to paragraph 6 of this Article, the maximum duration of bordercontrol at internal borders shall not exceed 2 years.

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6.

Where a Member State considers that there is a major exceptional situation withregard to a persisting serious threat justifying the continued need for border control atinternal borders in excess of the maximum period referred to in paragraph 5 of this
Article it shall notify the European Parliament, the Council and the Commission andthe other Member States of its intention to prolong internal border control for an
additional period of up to 6 months.. That notification shall be made at the latest 4
weeks before the planned prolongation and, taking into account the opinion of theCommission issued pursuant to Article 27a(3), shall include a risk assessment inaccordance with Article 26(2):(a)

substantiating the continued threat to public policy or internal security;(b)substantiating that alternative measures to remedy the threat are deemed orhave been found to be ineffective at the time of the notification;(c)presenting the mitigating measures considered to accompany the border control
at internal borders;(d)including, where appropriate, a presentation of the means, actions, conditions
and timeline considered with a view to lifting the border control at internalborders.

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Within 3 months after the notification referred to in the first subparagraph, theCommission shall issue a new opinion on the necessity and proportionality of the
prolongation of border control at internal borders. Following the receipt of that
notification, the Commission may, on its own initiative, or shall, at the request of theMember State directly affected, start a consultation process, in accordance with
Article 27a(1).
Where, in a major exceptional situation, the continued need for border control atinternal borders is confirmed as a result of the procedure referred to in thisparagraph, but the additional period of 6 months referred in the first subparagraph is
not sufficient to ensure the availability of effective alternative measures to address
the persisting threat, a Member State may decide to prolong border control at internalborders for a further and final additional period of up to 6 months, in line with therisk assessment as referred to in the second subparagraph. Where a Member Statedecides to do so, it shall notify the Commission without delay of its intention to
prolong its border control at internal borders. The Commission shall adopt without
delay a recommendation on the compatibility of such a final prolongation with theTreaties, in particular with the principles of necessity and proportionality. That
recommendation shall also identify, where appropriate with other Member States, theeffective compensatory measures to be implemented.’;PE-CONS 40/24

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(12)

Article 26 is replaced by the following:‘Article 26
Criteria for the temporary reintroduction and prolongation of border control at internalborders
1.

To establish whether the reintroduction of border control at internal borders isnecessary and proportionate in accordance with Article 25(2), a Member State shallin particular assess:(a)

the appropriateness of the measure of reintroducing border control at internalborder, having regard to the nature of the serious threat identified and inparticular, whether the reintroduction of border control at internal borders is
likely to adequately remedy the threat to public policy or internal security andwhether the objectives pursued by such reintroduction could be attained by:(i)the use of alternative measures such as proportionate checks carried out
in the context of checks within the territory as referred to in Article 23,
point (a);(ii)

the use of the procedure laid down in Article 23a;(iii) other forms of police cooperation provided for under Union law;(iv) common measures regarding temporary restrictions on travel to theMember States as referred to in Article 21a(2);PE-CONS 40/24

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(b)

the likely impact of such a measure on:(i)the movement of persons within the area without internal border control;
and

(ii)

the functioning of the cross-border regions, taking into account the strongsocial and economic ties between them.

2.

Where border control at internal borders has been in place for 6 months inaccordance with Article 25a(5), the Member State concerned shall carry out a risk
assessment, which, in addition to the elements contained in Article 27, paragraphs 2
and 3, shall also include a reassessment of the criteria laid down in paragraph 1 ofthis Article.

3.

Where border control at internal borders has been reintroduced or prolonged, theMember States concerned shall ensure that it is accompanied by appropriate
measures that mitigate the impact resulting from the reintroduction of border control
on persons and the transport of goods, giving particular consideration to the strongsocial and economic ties between cross-border regions, and to persons undertaking
essential travel.’;PE-CONS 40/24

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(13)

Article 27 is replaced by the following:‘Article 27
Notification of temporary reintroduction or prolongation of border control at internalborders and risk assessment
1.

Notifications by Member States of the reintroduction or prolongation of bordercontrol at internal borders shall contain the following information:(a)the reasons for the reintroduction or prolongation, including all relevant datadetailing the events that constitute a serious threat to its public policy orinternal security;(b)

the scope of the proposed reintroduction or prolongation, specifying at whichpart or parts of the internal borders border control is to be reintroduced or
prolonged;(c)the names of the authorised crossing-points;(d)the date and duration of the planned reintroduction or prolongation;(e)the assessment of the necessity and proportionality referred to in Article 26(1)and, in the case of a prolongation, in Article 26(2);PE-CONS 40/24

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(f)

where appropriate, the measures to be taken by other Member States.

A notification may be submitted jointly by two or more Member States.
Member States shall submit the notification using the template to be established by
the Commission pursuant to paragraph 6.
2.

Where border control has been in place for 6 months in accordance with
Article 25a(5), any subsequent notification for the prolongation of such control shall
include a risk assessment. The risk assessment shall present the scale and anticipatedevolution of the serious threat, in particular how long the serious threat is expected topersist and which sections of the internal borders may be affected, as well as
information regarding coordination measures with the other Member States impacted
or likely to be impacted by the border control at internal borders.

3.

Where Member States reintroduce or prolong border control because of a situationreferred to in Article 25(1) point (c), the assessment required by paragraph 1,
point (e), of this Article shall also include a risk assessment and information on thesudden large-scale unauthorised movements, including any information obtained
from the relevant Union agencies in line with their respective mandates and data
analysis from relevant information systems.

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4.

The Member State concerned shall upon request, provide the Commission any
further information, including on the coordination measures with the Member Statesaffected by the planned prolongation of border control at internal borders as well as
further information needed to assess the possible use of measures referred to in
Articles 23 and 23a.

5.

Member States shall not be required to provide all the information referred to inparagraphs 1 to 4 of this Article in cases justified on public security grounds, taking
into account the confidentiality of ongoing investigations. Member States submitting
a notification under paragraph 1 or 2 may, where necessary and in accordance withnational law, decide to classify all or parts of the notified information, in particular
the risk assessments. Such classification shall not preclude access to information,
through appropriate and secure channels, by the other Member States affected by the
temporary reintroduction of border control at internal borders. Such classification
shall not preclude information from being made available by the Member States tothe European Parliament. The transmission and handling of information anddocuments transmitted to the European Parliament under this Article shall notinclude the risk assessments referred to in paragraph 2 and shall comply with rules
concerning the forwarding and handling of classified information.

6.

The Commission shall adopt an implementing act to establish the template referred
to in the third subparagraph of paragraph 1 of this Article and shall make thetemplate available online. That implementing act shall be adopted in accordance withthe examination procedure referred to in Article 38(2).’;PE-CONS 40/24

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(14)

the following Article is inserted:‘Article 27a
Consultation with the Member States and opinion of the Commission
1.

Following receipt of notifications, submitted under Article 27(1), the Commission
may, on its own initiative, or shall, at the request of a Member State directly affectedby border control at internal borders, establish a consultation process including joint
meetings between the Member State that is planning to reintroduce or prolong bordercontrol at internal borders, and the other Member States, especially those directly
affected by such measures and the relevant Union agencies.
The objective of the consultation shall be to examine in particular the threat to public
policy or internal security, the necessity and proportionality of the intended
reintroduction of border control, at the internal borders taking into account theappropriateness of alternative measures, and, if border control has already been
reintroduced, the impact thereof, as well as the ways of ensuring implementation of
the mutual cooperation between the Member States in relation to the reintroductionof border control at internal borders.
The Member State planning to reintroduce or prolong border control at internalborders shall take into account the results of such consultation when deciding
whether to reintroduce or prolong border control at internal borders and whencarrying out border control at the internal border.

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2.

Following the receipt of notifications submitted in relation to the reintroduction or
prolongation of border control at internal borders, the Commission shall, or any
Member State may, without prejudice to Article 72 TFEU, issue an opinion, if, basedon the information contained in the notification and risk assessment, whereappropriate, or any additional information, they have concerns as regards thenecessity or proportionality of the planned reintroduction or prolongation of bordercontrol at internal borders.

3.

Following receipt of notifications submitted in relation to a prolongation of bordercontrol at the internal border under Article 25a(4) which leads to the continuation ofborder control at internal borders for 12 months in total, the Commission shall issue
an opinion on the necessity and proportionality of such border control.
The opinion of the Commission shall include at least:(a)an assessment of whether the reintroduction or prolongation of border control
at internal borders complies with the principles of necessity andproportionality;(b)

an assessment of whether alternative measures to remedy the serious threat
were sufficiently explored;

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Where the reintroduction of border control at internal borders is assessed and isconsidered to respect the principles of necessity and proportionality, the opinion shallcontain recommendations, where appropriate, on the improvement of the cooperation
between Member States in order to limit the impact of border control at internalborders and contribute to the reduction of the persisting threat.
4.

Where an opinion referred to in paragraphs 2 or 3 is issued, the Commission shallestablish a consultation process, in accordance with paragraph 1, in order to discuss
the opinion with the Member States.’;(15)

Article 28 is replaced by the following:‘Article 28
Specific mechanism where a large-scale public health emergency puts at risk the overall
functioning of the area without internal border control
1.

Where the Commission establishes that there is a large-scale public healthemergency that affects several Member States, putting at risk the overall functioningof the area without internal border control, it may make a proposal to the Council toadopt an implementing decision authorising the reintroduction of border control by
Member States, including any appropriate mitigating measures to be established atnational and Union level, where the available measures referred to in Articles 21aand 23 are not sufficient to address the large-scale public health emergency. The
Member States may request the Commission to submit such a proposal to theCouncil.

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2.

The Council implementing decision referred to in paragraph 1 shall cover a period of
up to 6 months and may be renewed, upon proposal from the Commission, forfurther periods of up to 6 months as long as the large-scale public health emergency
persists, taking into account the review referred to in paragraph 4.

3.

Where Member States reintroduce or prolong border control because of the largescale public health emergency referred to in paragraph 1, that border control shall, asof the entry into force of the Council implementing decision referred to inparagraph 1, be based on that decision.

4.

The Commission shall regularly review the evolution of the large-scale public healthemergency as referred to in paragraph 1, as well as the impact of the measures
adopted in accordance with the Council implementing decision referred to in thatparagraph, with a view to assessing whether those measures remain justified and if
not, to proposing the lifting of border control at internal borders as soon as possible.

5.

Member States shall immediately notify the European Parliament, the Council, theCommission and the other Member States of a reintroduction of border control inaccordance with the decision referred to in paragraph 1.

6.

Member States may take other measures, as referred to in Article 23, in order to limit
the scope of border control at internal borders. The Commission shall take thosemeasures into account in the review referred to in paragraph 4 of this Article.’;PE-CONS 40/24

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(16)

Article 33 is replaced by the following:‘Article 33
Report on the reintroduction of border control at internal borders
1.

Within 4 weeks of the lifting of border control at internal borders, Member States
which have carried out border control at internal borders shall present a report to theEuropean Parliament, the Council and the Commission on the reintroduction and,
where applicable, the prolongation of border control at internal borders.

2.

Without prejudice to the paragraph 1, where border control are prolonged as referred
to in Article 25a(5), the Member State concerned shall submit a report at the expiryof 12 months and 12 months thereafter if border control is exceptionally maintained.

3.

The report shall outline, in particular, the initial and follow-up assessment of thenecessity and proportionality of border control, the fulfilment of the criteria referred
to in Articles 26, the operation of the checks, the practical cooperation withneighbouring Member States, the resulting impact on the free movement of persons
in particular in the cross-border regions, the effectiveness of the reintroduction ofborder control at internal borders, including an ex-post assessment of the necessityand proportionality of the reintroduction of border control.

4.

The Commission shall adopt an implementing act to establish a uniform format forsuch report and shall make it available online. That implementing act shall be
adopted in accordance with the examination procedure referred to in Article 38(2).

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5.

The Commission may issue an opinion on that ex-post assessment of the temporary
reintroduction of border control at one or more internal borders or at parts thereof.

6.

At least once per year, the Commission shall report to the European Parliament andto the Council jointly on the functioning of the area without internal border control(the ‘State of Schengen report’). The Commission may also discuss the State of
Schengen report separately with the European Parliament and the Council. The
report shall include a list of all decisions to reintroduce border control at internalborders taken during the relevant year, as well as the actions taken by theCommission with regard to the reintroduction of border control at internal borders.
The report shall pay particular attention to border control that has been in place forlonger than 12 months. It shall also include an assessment of the necessity andproportionality of the reintroduction and prolongations of border control in the period
covered by that report as well as information on the trends within the area without
internal border control as regards the unauthorised movements of third-country
nationals, taking into account available information from the relevant Union agencies
and data analysis from relevant information systems.’;(17)

Article 36 is replaced by the following:‘Article 36
Amendments to the Annexes
1.

The Commission shall be empowered to adopt delegated acts in accordance with
Article 37 concerning amendments to Annexes III, IV and VIII.

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2.

The Commission shall be empowered to adopt delegated acts in accordance with
Article 37 to supplement this Regulation by adding in Annex XI, part B, categories
of persons undertaking essential travel.

3.

Where, in duly justified cases, regarding the nature of the large-scale public healthemergency, imperative grounds of urgency so require, the procedure provided for in
Article 37a shall apply to delegated acts adopted pursuant to paragraph 2 of this
Article.’;(18)

the following Article is inserted:‘Article 37a
Urgency procedure
1.

Delegated acts adopted under this Article shall enter into force without delay andshall apply for as long as no objection is expressed in accordance with paragraph 2.
The notification of a delegated act to the European Parliament and to the Council
shall state the reasons for the use of the urgency procedure.

2.

Either the European Parliament or the Council may object to a delegated act inaccordance with the procedure referred to in Article 37(5). In such a case, theCommission shall repeal the act immediately following the notification of thedecision to object by the European Parliament or by the Council.’;

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(19)

in Article 39(1), the following point is added:‘(h) the areas considered as cross-border regions and any relevant changes thereto.’;(20)

the following Article is inserted:‘Article 42b
Notification of cross-border regions
By … [6 months from the entry into force of this amending Regulation], all Member Stateswith common internal borders shall, in close cooperation, determine the areas of theirterritory considered as cross-border regions, taking into account the strong social andeconomic ties between them, and notify the Commission thereof.
Member States shall also inform the Commission of any relevant changes thereto.’;(21)

The text set out in the Annex to this Regulation is added as Annexes XI and XII toRegulation (EU) 2016/399.

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Article 2This Regulation shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States inaccordance with the Treaties.
Done at …,

For the European Parliament

For the Council

The President

The President

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ANNEX‘ANNEX XI
Essential Travel
PART A
Categories of persons referred to in Article 21a(4):1.

healthcare professionals, health researchers and elderly care professionals;

2.

frontier workers;

3.

transport personnel;

4.

diplomats, staff of international organisations and people invited by internationalorganisations whose physical presence is required for the well-functioning of theseorganisations, military personnel and humanitarian aid workers and civil protection
personnel in the exercise of their functions;5.

passengers in transit;

6.

passengers travelling for imperative family reasons;7.

seafarers;

8.

persons in need of international protection or needing to enter for other humanitarianreasons.

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PART B
Categories of persons referred to in Article 21a (5):1.

children in early childhood education and care and pupils in education in a neighbouring
country and their guardians who accompany them, who cross the border for the purpose ofreceiving such education, as well as students or persons travelling for educational
purposes;2.

seasonal workers, including food producing workers;

3.

persons travelling for compelling reasons of animal care or for measures necessary for
agriculture and forestry in individual cases;

4.

highly qualified workers as well as key and scientific staff whose employment is necessary
from an economic, societal and security perspective and whose work cannot be postponedor performed abroad;5.

personnel of the public authorities for defence, public policy, public health and national
security – i.e. police staff, border police, immigration, public health, civil protection
departments etc. or representatives of law enforcement authorities, if the travel is related tothe performance of official duties, including personnel responsible for operating andmaintaining critical infrastructure;

6.

fishermen and persons performing work or providing services on ships or offshore mining
and drilling platforms, based on an employment relationship other than a maritime
employment contract;

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7.

persons entering the Member State for the purpose of receiving essential medical services,
including occupants of emergency vehicles;

8.

spouses (married, civil partner, cohabiting partner) and children of an essential traveller,
including third-country nationals traveling for family reunification;

9.

third‑ country nationals traveling to respond to a summons by a judicial authority;

10.

persons in possession of an International Press Card issued by the International Federation
for Journalists;

11.

care-dependent persons travelling to their care-takers.

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ANNEX XIIPART A
Procedure for transferring persons apprehended in internal border areas
1.

Transfer decisions pursuant to Article 23a(2) shall be issued by means of a standard form,
as set out in Part B of this Annex, completed by the competent national authority. They
shall take effect immediately.

2.

The completed standard form shall be handed to the third-country national concerned, whoshall acknowledge receipt of the transfer decision by signing the form and shall be given a
copy of the signed form.
Where the third-country national refuses to sign the standard form, the competent authority
shall indicate this refusal in the form under the section “comments”.

3.

The national authorities issuing a transfer decision shall record the data on the standard
form set out in Part B of this Annex.

4.

The national authorities issuing a transfer decision shall inform the Commission yearly on
the number of persons transferred to other Member States, indicating the Member State(s)to which the persons were transferred, grounds for finding that those persons had no rightto stay in the Member State and, where available, the nationality of the third-country
nationals apprehended.

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5.

Third-country nationals apprehended in border areas and transferred under this procedure
shall have the right to appeal. Appeals against the transfer decision shall be conducted inaccordance with national law. The third-country nationals shall be provided with aneffective remedy in accordance with Article 47 of the Charter. A written indication ofcontact points able to provide information on representatives competent to act on behalf ofthe third-country national in accordance with national law shall also be given to the thirdcountry national in a language that they understand or are reasonably supposed tounderstand. Lodging such an appeal shall not have suspensive effect.

6.

The competent national authorities shall ensure that the third-country national subject to atransfer decision is transferred, in the framework of bilateral cooperation as referred to in
Article 23a, paragraph 1(a), to the competent authorities of the receiving Member State.
The transfer shall take place immediately and within 24 hours at the latest. After that, thetransfer procedure cannot take place and the relevant provisions of the Directive
2008/115/EC shall apply where appropriate. The competent national authorities of thereceiving Member State shall cooperate with the competent national authorities of thetransferring Member State to that end.

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PART B
Standard form for transferring persons apprehended in internal border areas

Name of State
Logo of State (Name of Office)_____________________________________________________________________________________________________
TRANSFER PROCEDURE IN INTERNAL BORDER AREAS
On _________________________ at (time) ___________ at the location (indicate type of the internal border nearby or other relevant information
related to the apprehension in accordance with Article 23a of the Schengen Borders Code)____________________________
We, the undersigned, __________________________________________________________________________________have before us
Personal data (subject to availability)
Surname_______________________________________________________ First name _________________________________________
Date of birth__________________________________ Place of birth ____________________________________________ Sex _________
Nationality ________________________________________ Resident in _____________________________________________________
Type of identity document ________________________________________________ number ___________________________________
Issued in _____________________________________________ on _________________________________________________________
Visa number, if any ________________________ type _________________ issued by ________________________________________________
Valid from ________________________ until ________________________For a period of ________ days: __________________________________________________________________
Coming from ___________________ by means of __________________ (indicate means of transport used, e.g. flight number), he/she is hereby
informed that he/she will be transferred to ______________________ pursuant to Article 23a of the Schengen Borders Code:Grounds for finding that a person has no right to stay in the Member State:
Comments□ The person concerned declined to sign the form.
Person Concerned ________________________________________ Responsible authorities ________________________________________The person concerned may appeal against the transfer in accordance with national law. The person concerned receives a copy of this document (eachState must indicate the references to the national law and procedure relating to the right of appeal as well as contact points able to provide information
on representatives competent to act on behalf of the third-country national).’.

PE-CONS 40/24
ANNEX

BK/JGC/cc
JAI.1

6EN