Council of theEuropean Union
Brussels, 16 December 2021
(OR. en)
14601/21
ADD 1

Interinstitutional File:
2021/0428(COD)

JAI 1426
FRONT 443
MIGR 278
COVID-19 416
SAN 765
TRANS 766
CODEC 1674
COMIX 637
COVER NOTE
From:
date of receipt:

Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director
15 December 2021

To:

Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Councilof the European Union

No. Cion doc.:

SWD(2021) 462 final

Subject:

COMMISSION STAFF WORKING DOCUMENT IMPACTASSESSMENT REPORT Accompanying the document Proposal for a
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

Delegations will find attached document SWD(2021) 462 final.

Encl.: SWD(2021) 462 final

14601/21 ADD 1

MdL/cr
JAI.1

EN

EUROPEAN
COMMISSION

Strasbourg, 14.12.2021
SWD(2021) 462 final

COMMISSION STAFF WORKING DOCUMENTIMPACT ASSESSMENT REPORT
Accompanying the document
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL
amending Regulation (EU) 2016/399 on a Union Code on the rules governing the
movement of persons across borders{COM(2021) 891 final} - {SEC(2021) 440 final} - {SWD(2021) 463 final}

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Table of contents
1.

INTRODUCTION: POLITICAL AND LEGAL CONTEXT ............................................................... 4

2.

PROBLEM DEFINITION ..................................................................................................................... 6

2.1. What is/are the problems? ................................................................................. 6
2.1.2. Discrepancies in the application of travel restrictions at the external borders
undermining the trust and impacting the credibility vis-a-vis third countries .......... 19
2.2. What are the problem drivers? ........................................................................ 27
2.3. How likely is the problem to persist? .............................................................. 30
3.

WHY SHOULD THE EU ACT?......................................................................................................... 32

3.1. Legal basis ....................................................................................................... 32
3.2. Subsidiarity: Necessity of EU action............................................................... 32
3.3. Subsidiarity: Added value of EU action .......................................................... 33
4.

OBJECTIVES: WHAT IS TO BE ACHIEVED? ................................................................................ 33

4.1. General objectives ........................................................................................... 33
4.2. Specific objectives ........................................................................................... 34
5.

WHAT ARE THE AVAILABLE POLICY OPTIONS? ..................................................................... 36

5.1. What is the baseline from which options are assessed? .................................. 36
5.2. Description of the policy options .................................................................... 37
5.3. Options discarded at an early stage ................................................................. 47
6.

WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?............................................................ 48

6.2. Impacts on fundamental rights ........................................................................ 50
6.3. Other impacts .................................................................................................. 51
7.

HOW DO THE OPTIONS COMPARE? ............................................................................................ 52

8.

PREFERRED OPTION ....................................................................................................................... 56

8.1. Option 2 ........................................................................................................... 56
8.2. REFIT (simplification and improved efficiency) ............................................ 56
9.

HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 57

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 59
1.

LEAD DG, DECIDE PLANNING/CWP REFERENCES .................................................................. 59

2.

ORGANISATION AND TIMING ...................................................................................................... 59

3.

CONSULTATION OF THE RSB ....................................................................................................... 59

4.

EVIDENCE, SOURCES AND QUALITY ......................................................................................... 62

5.

ANALYTICAL METHODS ............................................................................................................... 63

ANNEX 2: STAKEHOLDER CONSULTATION ....................................................................................... 64
1.

SCHENGEN FORUM ......................................................................................................................... 64

2.

MINUTES: EXPERT MEETINGS ON MEASURES ALLOWING FOR A MORE
EFFECTIVE COOPERATION WITHIN THE SCHENGEN AREA, 14 AND
22 JANUARY 2021 ............................................................................................................................ 64

3.

PUBLIC CONSULTATION ............................................................................................................... 69

ANNEX 3: WHO IS AFFECTED AND HOW? ........................................................................................... 77

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1.

PRACTICAL IMPLICATIONS OF THE INITIATIVE ..................................................................... 77

2.

SUMMARY OF COSTS AND BENEFITS ........................................................................................ 77

ANNEX 4: RELEVANT INPUTS AND STUDIES ..................................................................................... 80
ANNEX 5: CONCLUSIONS OF THE CHAIR – SCHENGEN FORUM 30 NOVEMBER 2020 .............. 88
ANNEX 6: LIST OF REINTRODUCED BORDER CHECKS AT INTERNAL BORDERS ..................... 90
ANNEX 7: FACTS ON THE EVOLUTION OF THREATS ..................................................................... 111
ANNEX 8: MEASURES BY THE SCHENGEN MEMBER STATES AT THEIR INTERNALAND EXTERNAL BORDERS IN RESPONSE TO THE FIRST WAVE OF COVID-19(UNTIL 19 MARCH 2020) ............................................................................................................... 114
ANNEX 9: EXAMPLES OF GOOD PRACTICES DURING THE COVID-19 PANDEMIC .................. 124
ANNEX 10: USE OF POLICE CHECKS AND NEW TECHNOLOGIES WITHIN THE LASTFIVE YEARS .................................................................................................................................... 126
ANNEX 11: DUTCH @MIGO-BORAS SYSTEM ................................................................................... 131
ANNEX 12: REPORTS RECEIVED BY MEMBER STATES WITH INTERNAL BORDERCONTROL IN PLACE BETWEEN MARCH AND JUNE 2020 IN ACCORDANCE WITH
ARTICLE 33 SBC ............................................................................................................................. 140
ANNEX 13: API AND PNR ....................................................................................................................... 142
ANNEX 14: NEW IT ARCHITECTURE AT THE EXTERNAL BORDERS .......................................... 143
ANNEX 15: BORDER AREAS ................................................................................................................. 144
ANNEX 16: LIST OF LEGAL ACTS AND PROPOSALS MENTIONED IN THE IMPACTASSESSMENT ................................................................................................................................. 146
ANNEX 17: 2017 PROPOSAL OF THE AMENDMENT OF THE SCHENGEN BORDERS
CODE ................................................................................................................................................ 150

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1.

CONTEXT OF THE PROPOSAL .................................................................................................... 152

2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY..................................................... 156

3.

RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND
IMPACT ASSESSMENTS ............................................................................................................... 158

4.

BUDGETARY IMPLICATIONS ..................................................................................................... 158

5.

OTHER ELEMENTS ........................................................................................................................ 158

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Glossary
Term or acronym

Meaning or definition

API

Advanced Passenger Information

ECDC

European Centre for Disease Prevention and Control

ECRIS-TCN

The European Criminal Records Information System –Third Country Nationals

EES

Entry/Exit System

ETIAS

European Travel Information and Authorisation Systemeu-LISAEU Agency for the Operational Management of LargeScale IT Systems in the Area of Freedom, Security andJustice

EURODAC

European Asylum Dactyloscopy Database

Europol

European Union
Cooperation

FRA

Fundamental Rights Agency

FrontexEuropean Border and Coast Guard Agency (EBCG)

PNR

Passenger Name Record

SAC

Schengen Associated Countries: Iceland, Liechtenstein,
Norway and Switzerland

SBC

Schengen Borders CodeSchengen Handbook

Practical Handbook for Border Guards - ANNEX

Agencyfor

Law

Enforcement

to the Commission Recommendation C(2019)7131
SIS

EN

Schengen Information System

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EN

TFEU

Treaty on the Functioning of the European Union

VIS

Visa Information System

WHO

World Health Organisation

YEAYour Advice Europe

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1.

INTRODUCTION: POLITICAL AND LEGAL CONTEXTThe Schengen area without controls at internal borders (the “Schengen Area”) is one of themost significant achievements of European integration. It comprises an area where European
Union (EU) citizens and non-EU citizens legally staying in the territory as well as goods andservices can circulate freely. Schengen is a key element for the functioning of the Single
Market and its creation has brought significant social and economic benefits to European
societies.
As illustrated by a 2018 EUROBAROMETER survey1, Europeans value Schengen very
much, in particular the easier trade and travel, and the absence of passport control. This isconfirmed by the high number of complaints and queries following the introduction of
measures at internal borders in response to COVID-19 (see section 2.1.1).
1.1.

Brief overview of the Schengen area

The Schengen area stems from the 1985 Schengen Agreement and the 1990 Schengen
Convention2. Originally conceived as intergovernmental cooperation, it became a fullyfledged Community policy thanks to the Treaty of Amsterdam and Treaty of Lisbon. At
present, the Schengen acquis relating to the area without controls at internal borders applies
to all Member States except Ireland3 and to four Schengen Associated Countries (SAC).
The Schengen area is supported by a significant body of measures to compensate for theabsence of controls at internal borders and ensure a high level of security. The
Schengen acquis has developed over years and has been recently further reinforced in theareas of external borders (external border management, common visa policy), andcompensatory measures (police cooperation, return policies and the Schengen Information
System (SIS)). A robust monitoring mechanism4 ensures the proper implementation of
measures, both at the external borders and within the Schengen area.
At the core of the Schengen project is the abolition of checks at internal borders which,according to the Schengen Borders Code5 (SBC), can be crossed at any point and time. To
that end, Member States must remove obstacles to a fluid traffic flow at land borders, inparticular speed limits not based on road-safety considerations.
The abolition of checks at internal borders implies that measures having an effectequivalent to border checks are also prohibited (Article 23(1) SBC). While no criteria arelaid down in the law as to when measures have such equivalent effect, Article 23(1) SBC (andthe relevant case-law6) provides a non-exhaustive list of checks within the territory that areconsidered admissible, suggesting that in particular measures exclusively linked to the fact1

https://ec.europa.eu/home-affairs/news/what-do-europeans-think-schengen-area-results-special-eurobarometerschengen_en
2
OJ L 239, 22.9.2000, p. 13 and OJ L 239, 22.9.2000, p. 19 respectively.
3
Ireland and the United Kingdom until Brexit opted in to participate only in police and judicial cooperation incriminal matters (thus not on external border control or rules concerning the internal borders).
4
Council Regulation (EU) No 1053/2013 (OJ L 295, 6.11.2013). For full reference, see Annex 16.
5
Regulation (EU) 2016/399 (OJ L 77, 23.3.2016, p. 1–52). For full reference, see Annex 16.
6
See in particular Judgment of the Court of Justice of 22 June 2010, Melki and Abdeli, joined cases C-188/10
and C189/10, ECLI:EU:C:2010:363, judgment of the Court of Justice of 19 July 2012, Adil,
ECLI:EU:C:2012:508, C-278/12 PPU.

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that a person is crossing the border are proscribed. However, the Member States continue tobe able to carry out any other measures related to the exercise of police powers under nationallaw.
Moreover, Member States may temporarily reintroduce border checks at their internalborders as a last resort measure, for a limited period of time, and in response to a serious
threat to internal security or public policy, on the basis of the rules set out in Chapter II of
Title III of the Schengen Borders Code. This possibility has been used extensively in the last
six years (i.e. since the migratory crisis of 2015 and increased terrorist threats), impacting theexercise of the freedoms guaranteed by the Treaties.
1.2.

A New Strategy for Schengen

In her State of the Union 2020 address, President von der Leyen announced a new strategy
for the future of Schengen with a view to restoring the four freedoms “in full and as fast as
possible”7. The idea of a new approach to Schengen replied to the challenges that the
Schengen area has been confronted with in the past years: an extraordinary high level ofmigration in 2015, an increased threat from terrorism and COVID-19. This idea echoed in the
Joint Declaration of the EU Home Affairs Ministers of 12 November 20208. In the Pact on
Migration and Asylum9, the Commission announced the establishment of a dedicatedSchengen Forum in order to stimulate more concrete cooperation and to re-build trust
between all relevant stakeholders of the Schengen area. The Forum, organised for the firsttime on 30 November 2020, gathered representatives of the Member States and of theEuropean Parliament who agreed that Schengen needs to be made stronger and more resilient.
The situation at the internal borders was also recalled in the European Parliament’s
Resolution of 20 January 2021 on monitoring the application of Union law 2017, 2018 and201910. This Strategy should build on the efforts of the Commission to restore Schengen andto make it stronger, and is part of the wider exercise of making Europe more resilient, in theaftermath of the pandemic.
The upcoming Schengen Strategy will steer the process of reinforcing Schengen governance.
It is to be accompanied by two initiatives: one to review the Schengen Borders Code, withconclusions to be drawn from the negotiations on the Commission’s proposal of 2017
(hereafter the “2017 proposal”)11, and a proposal to reform the Schengen evaluation
mechanism12 in order to make it a fully effective tool for evaluating the functioning of
Schengen and implementation of the follow-up recommendations. The Strategy will also takestock of the initiatives and measures that are currently being implemented in the managementof the external borders. This concerns in particular the measures related to the new IT
architecture at the external borders (Entry Exit System (EES) European Travel Information

7

State of the Union Address by President von der Leyen at the European Parliament Plenary, 16 September
2020, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_20_1655.
8
Joint statement by the EU home affairs ministers on the recent terrorist attacks in Europe, 13 November 2020,
https://www.consilium.europa.eu/en/press/press-releases/2020/11/13/joint-statement-by-the-eu-home-affairsministers-on-the-recent-terrorist-attacks-in-europe/.
9
COM/2020/609 final. For full reference see Annex 16.
10
Report on monitoring the application of Union law 2017, 2018 and 2019, 17 December 2020,(2019/2132(INI)), https://www.europarl.europa.eu/doceo/document/A-9-2020-0270_EN.html.
11
COM(2017)571 final. For full reference see Annex 16.
12
PLAN/2020/8679.

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and Authorisation System (ETIAS) and Interoperability)13. Finally, it will announce
additional initiatives to reinforce security in the EU (e.g. on cross-border police cooperation),
to complement the Commission’s continued efforts to make full use of the Schengen
Information System and to increase the capacities of Europol14.
The revision of the Schengen Borders Code will particularly take into account the lessons
learnt from the lack of sufficient support among Member States for the 2017 proposal. The
2017 proposal aimed at extending the time-limits applicable for reintroduction of internalborder controls in exchange for stronger procedural safeguards. It provided for an increase of
the time-limit for the temporary reintroduction of border control at internal borders in case offoreseeable threats to up to one year with prolongation periods of up to 6 months. In contrast,
a new consultation procedure was foreseen, in which the Commission would have had thepower to take a stance on the necessity and proportionality of the checks15.
This Impact Assessment assesses the options for making Schengen stronger and more
resilient, including a fresh way forward on the Schengen Borders Code (the reform of the
Schengen Evaluation Monitoring Mechanism is subject to a separate report). It is based on a
consultation process launched at the Schengen Forum in November 2020 and continued
through technical workshops in January and February 2021 with Member States,
representatives of the European Parliament and stakeholders, as well as a public consultation
carried out between 19 January and 16 March 202116.
2.

PROBLEM DEFINITION

2.1.

What is/are the problems?

Over the last six years, Schengen has been exposed to a number of challenges: an
extraordinary migratory pressure in 2015 which exposed the deficiencies in the managementof some external borders, terrorist attacks and, most recently, COVID-19. According toEurostat17, in 2015, 1,255,600 first time asylum seekers applied for international protection in
the Member States of the European Union (EU), a number more than double that of theprevious year. To compare, in 2018 there were 699,000 applications lodged in the EU,
including 631,000 first time applications18. The terrorist threat, while always present, has
become very prominent in Europe since the attack on Charlie Hebdo six years ago, in January
2015, and the growth of the so-called Islamic State in Syria (yet, this development can belinked with Schengen only in a limited manner - see Annex 7). Finally, the fast spread of the13

EES Regulation (EU) 2017/2226 (OJ L 327, 9.12.2017), ETIAS Regulation (EU) 2018/1240, OJ L 236,
19.9.2018), Interoperability Regulation (EU) 2019/817 (OJ L 135, 22.5.2019, p. 27).
14
(SIS) COM(2020)791final and Europol COM(2020)796final respectively.
15
See Annex 17.
16
Public consultation “Temporary checks at internal borders – amending the Schengen Borders Code”:
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12827-Amendment-of-the-SchengenBorders-Code/public-consultation.
17
Eurostat Newsrelease “Asylum in the EU Member States Record number of over 1.2 million first time asylum
seekers registered in 2015”, 4 March 2016: https://ec.europa.eu/eurostat/documents/2995521/7203832/304032016-AP-EN.pdf/790eba01-381c-4163-bcd2-a54959b99ed6.
18
European Commission “Statistics on migration to Europe”: https://ec.europa.eu/info/strategy/priorities-20192024/promoting-our-european-way-life/statistics-migration-europe_en#developmentsin20192018.

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COVID-19 pandemic caused between March and October 2020 an excess of deaths
amounting to almost 300,000 in the EU, compared with the same period in 2016 – 201919.
In response to these developments, some Member States decided to reintroduce border checks
at some or all of their internal borders (see Table 1 below). While at first such decisions
responded to clearly identifiable events, in particular major sports events, and for a certain
period of time have been even recommended by the Council20 (see Annex 7), now they often
appear to be permanent precautionary measures. At the same time, measures agreed to protect
the external borders in relation to COVID-19 are applied in an incoherent manner by anumber of Member States, thus increasing the problems for the Schengen area as a whole.
Although reintroducing border checks is a legitimate measure to address serious threats tointernal security and public policy and may help the implementation of other legitimate
measures (for instance travel restrictions), the geographical scope and duration of these borderchecks have had a heavy impact on the free movement of persons and the free circulation of
goods, two fundamental freedoms guaranteed by the Treaties. The scale of this impact isoutlined in section 2.1.3. The impact has been particularly visible at the land borders,affecting in particular the multiple economic and social ties in cross-border regions and the
150 million persons living in these regions.
Despite a number of initiatives taken by the European Commission (in particular the
Recommendation of 12 May 2017 on proportionate use of police checks and police
cooperation in the Schengen area21 and the Recommendation of 3 October 2017 on theimplementation of the provisions of the Schengen Borders Code on a temporary
reintroduction of border control at internal borders in the Schengen area22, the proposal for anamendment to the Schengen Borders Code tabled in 2017 and high level discussions, as at the
Schengen Forum on 30 November 2020) and a number of resolutions of the European
Parliament23, these border checks have not yet been lifted.
Table 1 - Overview of border checks at internal borders September 2015 - May 2021*,
based on notifications received from Member States
COVID-19 related (state of play April
2021)

Migration and terrorism (long-lasting
border checks in place since 2015/2016)19

Eurostat “Excess mortality in 2020: especially high in spring and autumn”, 20 January 2021,
https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20210120-1.
20
Serious deficiencies identified at the Greek external border in 2016 led to the adoption of four Council
Recommendations that, based on Article 29, called on five Member States (Austria Germany, Sweden, Denmarkand Norway) to temporarily reintroduce border checks at their internal borders between May 2016 andNovember 201721
C(2017)3349. For full reference see Annex 16.
22
Commission Recommendation (EU) 2017/1804 For full reference see Annex 16.
23
E.g. European Parliament resolution of 24 November 2020 on the Schengen system and measures taken during
the COVID-19 crisis (2020/2801(RSP)), European Parliament resolution of 19 June 2020 on the situation in the
Schengen area following the COVID‑ 19 outbreak (2020/2640(RSP)), European Parliament resolution of 17
September 2020 on COVID-19: EU coordination of health assessments and risk classification, and theconsequences for Schengen and the single market (2020/2780(RSP)), European Parliament resolution of 30 May
2018 on the annual report on the functioning of the Schengen area (2017/2256(INI)).

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Austria (9 January 2021 - 28 April 2021)

Austria 16 September 2015 – 11 November
2021

Belgium (27 January 2021 – 18 April
2021)
Denmark (13 March 2020 – 11 November Denmark 4 January 2016 – 11 November
2021)
2021
Finland (19 March 2020 – 30 April 2021)
France (1 May 2021– 31 October 2021)

France 13 November 2015 – 31 October
2021
Germany 13 September 2015 – 11 November
2021

Hungary (1 September 2020 – 22 May
2021)
Iceland (18 March 2021 – 16 April 2021)
Norway (16 March 2020 – 10 May 2021)

Norway 26 November 2015 – 11 May 2021

Portugal (31 January 2021 – 30 April
2021)
Spain (31 January 2021– 1 May 2021)
Sweden 12 November 2015 – 11 May 2021
* This table does not take into account the border checks that were reintroduced but had
again been lifted by April 2021.
For more information concerning the reintroductions of border checks at internal borders, see
Annex 6.
Based on the experience of the last six years in the Schengen area, including the recent crisis
situation related to COVID-19, two problems can be identified:-Problem 1: Border checks at internal borders which are long-lasting and applied
against an abstract threat or used as a first aid measure (and as such are often
disproportionate and inadequate to address the threats they are supposed to tackle)
become an unjustified hurdle to exercising the freedom of movement for persons andgoods;- Problem 2: Discrepancies in the application of the measures at the external borders,such as travel restrictions for non-essential travel to the EU by third country nationals,
undermining the trust between Member States and increasing the incentives for someto reintroduce internal border checks, thus putting the overall functioning of Schengenat risk.
The existence of these problems is linked with the following specific issues:

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-

-

Specific issues of effectiveness concerning Problem 1:
Use of border checks at internal borders as a first aid measure without sufficient
mitigating measures;
Persistence of border checks at internal borders, while compensatory measures thatwould interfere less with the movement of goods and persons across borders are not orunder-used.
Specific issues of relevance concerning Problem 2:
Travel restrictions for non-essential travel to the EU at the external borders are only
set out in a Council Recommendation which is legally not binding.

Box 1 – Problem definition
PROBLEM 1 (Section 2.1.1) Border checks at internal borders which are long-lasting
and applied against abstract threats or are used as a first aid measure (and as such areoften disproportionate and inadequate to address the threats they are supposed to tackle)
become an unjustified hurdle to persons and goods moving in the Schengen area.
a) Use of border checks at internal borders by Member States as a ‘first aid
measure’;•Examples of difficulties (at the outset and in relation to evolving
circumstances)• Perspective of the cross-border regions• Effectiveness and efficiency of border checks in addressing threats topublic health• Response time to mitigate impacts – unavailability of mitigating
measures from the outsetb) Long-term hurdles for persons and goods to move freely in the Schengen area
• Underuse of compensatory measures
PROBLEM 2 (Section 2.1.2) Discrepancies in the application of travel restrictions at
the external borders undermining the trust and impacting the credibility vis-a-vis third
countries.

IMPACTS OF THE PROBLEMS (Section 2.1.3)
2.1.3.1 Impacts of the long- lasting border controls• Specific impacts on the air travel industry• Impacts on the cross-border regions• Impacts on the administration• Impacts on border management capacity
2.1.3.2 Impacts related to COVID-19
1.2.1. Border checks at internal borders which are long-lasting and applied
against abstract threat or used as a first aid measure (and as such areoften disproportionate and inadequate to address the threats they are

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supposed to tackle) become an unjustified hurdle to persons and goods
moving in the Schengen area
This problem refers to a number of situations over the last 6 years where Member States havedecided to temporarily reintroduce border checks at their internal borders, for different
reasons. Since September 2015, border checks at the internal borders have been reintroduced
more than 250 times. Even if, per se, border checks are without prejudice to the right of freemovement, in practice they do have an impact on the way EU citizens can exercise this right.
In some cases, they can also serve to implement other measures affecting the freedom of
movement, in particular travel restrictions.
Box 2 – Absence of checks at internal borders and freedom of movement
Pursuant to Article 3(2) of the Treaty on European Union, “[t]he Union shall offer its citizens anarea of freedom, security and justice without internal frontiers, in which the free movement of
persons is ensured in conjunction with appropriate measures with respect to external bordercontrols, asylum, immigration and the prevention and combating of crime.”

While the Schengen Borders Code abolishes border checks at internal borders (Article 22) andrequires Member States to remove any obstacles to traffic at land borders (Article 24), theconditions for the exercise of the right of free movement and residence24 (both temporary andpermanent) in the EU for EU citizens and their family members are set out in Directive
2004/38/EC25.

The freedom of movement of EU citizens in the internal market is the basis for allowing theabsence of internal border controls on persons in the Schengen area, but these two concepts are
not equivalent in scope. Free movement of persons is also granted to EU citizens living in a
Member State which does not (yet) participate in the area without internal border control. Within
the Schengen area, the benefits of not being submitted to border checks are also available tothird country nationals legally staying or residing in the Schengen area, but the right to travel of
those third country nationals does not go that far as the right of free movement of EU citizens. In
any case, the temporary reintroduction of border checks at internal borders does not affect rules
governing the right of free movement as set out in Directive 2004/38/EC.

In 2020, the numerous reintroductions of border checks at internal borders intended to contain(or to help contain) the spread of COVID-19 revealed a number of specific problems which
will be analysed in point a) below. Similarly, the years preceding the pandemic, where anumber of Member States carried out persistent border checks at their internal borders or onsome sections of these borders, provide evidence on how ineffective these checks often are.
This will be analysed in point b) below.

24This right stems from Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), which
provides that every citizen of the Union shall have the right to move and reside freely within the territory of theMember States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted
to give effect to them. Article 45 of the Charter of Fundamental Rights of the European Union also provides for
freedom of movement and residence.
25
Directive 2004/38/EC (OJ L 158, 30.4.2004, p. 77.) For full reference see Annex 16

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a) Internal border checks as a measure of first aid
In the period March – June 2020, border checks at internal borders have often been
applied a first aid measure and 17 Member States reintroduced border checks in an(unsuccessful) attempt to contain a further spreading of COVID-19. Some of them maintainedor re-reintroduced them again even during periods where the epidemiological situation acrossthe EU was comparable between the Member States. The identification of new variants of thevirus at the end of 2020 led again to another wave of reintroductions of border checks atinternal borders.
Until the adoption of sectorial guidelines by the EU with the aim to mitigate the unwanted
effects of internal border controls (disruption of supply chains, disproportionate hurdles tofree movement of persons, goods and services), Member States and EU citizens have been
exposed to unprecedented disruptions.
Annex 8 shows the state of play as of mid-March 2020 as regards the measures taken by theMember States to respond to COVID-19. Table 2 below illustrates problems identified
around the same time, which have been considered as hindering, in a disproportionate way,
professional travel and/or the smooth transport of goods and services, as well as other rights
of EU citizens. The more specific impacts of these measures on the freedoms are further
explained in sections 2.1.3.1 and 2.1.3.2 below.
Table 2 – Examples of problems at internal borders in 2020
MS/SAC
Problem description
PL-DE:The unilateral decision of Poland to reintroduce border checks led to severecongestion in the border areas, in particular in spring 2020, as many Polishcitizens wanted to return to Poland. Long queues built up at bordercrossings and continued throughout the border closure. All this also heavily
impacted on the freight traffic and therefore the delivery of essential goods.

SI-IT:The decision banning inter-regional movement in Italy was not shared withSlovenia. Unaware of the fact that Italians were not allowed to moveanyway, Slovenian authorities closed overnight the secondary crossing
points (sometimes by installing large rocks in the middle of the street) andleaving only two international crossings open (with controls). As Slovenia
is a transit country between Eastern and Western Europe, many trucks got
stuck at the border. Some farmers even found their fields split in two,
without the possibility to use their usual country roads. Furthermore, thefact that one of the crossing points was on a highway meant thatpedestrians and cyclists were not allowed to use it.

BE-NL

The border was closed with containers, blocks and fences – only a few
crossing points were left open for frontier workers, with the police
controlling people travelling into and out of Belgium (only Belgium
reintroduced border controls). There were limited justifications for crossing
the border (accepted reasons were work-related or essential health of family
reasons).

Based on the DG REGIO Report The effects of COVID-19 induced border closures on crossborder regions - An empirical report covering the period March to June 2020’

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The situation has evolved since Spring 2020, and the border measures have often been lifted
and introduced again. This means that people, in addition, also had to keep pace with frequentchanges in the applicable rules. The public consultations provided some insights to illustrate
this challenge. According to Eurostar ‘The clarity and reciprocity of border restrictions, andtheir joint implementation, is essential [...]’26. ‘[B]order restriction rules have been changing
and updating on a virtually daily basis. The result has been confusion for passengers, staff
and within governments. Frequently governments’ own information (e.g. embassy websites)
has failed to keep up and had been partial, inaccurate or missing entirely. The overwhelming
majority of passengers are trying to be responsible but if the rules are not clear and simple,
they struggle to comply. Eurostar staff and border forces are put in the difficult position tohave to interpret rules and regularly fail to provide answers with confidence’27.
•

Perspective of the cross-border regions

The uncoordinated response has affected in particular cross-border regions where the socioeconomic ties between EU citizens and companies based in different Member States are verystrong. The sudden reintroduction of border controls also affected the local capacities toensure essential services on both sides of the border. These problems illustrate the fact thatborders should be understood in the first place not as lines separating national sovereignties,
but as areas where people live together.
As reported by DG REGIO28, around 150 million Europeans live in border regions amounting
to 30% of the EU population. The cross-border regions cover 40% of the EU territory andproduce 30% of the EU's GDP. Therefore, any changes as regards the possibility to cross theborders without controls are socially and economically significant. The specific impacts ofmeasures at the internal borders on the cross-border regions are described in section below
2.1.3.
According to the study by DG REGIO ‘The effects of COVID-19 induced border closures oncross-border regions - An empirical report covering the period March to June 2020’29 and the‘20 case studies covering the period March to June 2020’30 accompanying it, the measurestaken by the Member States have had a significant impact on different elements of crossborder ties. The most relevant for this Impact Assessment relate to the area without borderchecks at internal borders, and concern primarily cross-border workers.

26

Written contribution submitted to the Commission following the workshop of 14 January 2021.
Written contribution submitted to the Commission following the workshop of 14 January 2021.
28
COM(2017) 534 final Boosting growth and cohesion in EU border regions.
29
European Commission, Directorate-General for Regional and Urban Policy, “The effects of COVID-19
induced border closures on cross-border regions – An empirical report covering the period March to June 2020”,
February2021:
https://op.europa.eu/en/publication-detail/-/publication/46250564-669a-11eb-aeb501aa75ed71a1/language-en/format-PDF/source-search.
30
European Commission, Directorate-General for Regional and Urban Policy, “The effects of COVID-19
induced border closures on cross-border regions – 20 case studies covering the period March to June 2020”,
February
2020,
https://op.europa.eu/en/publication-detail/-/publication/bf14de68-6698-11eb-aeb501aa75ed71a1/language-en.
27

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The reintroduction ofdifferent measures atinternal borders havebeen
particularly
visible in the so called‘twin-cities’,
where
the reintroduction ofchecks at internalborders affected all
aspectsofsuchentities. There are 37
entities of this kind(i.e. cities that extend
over the territories of
two Member States) in
the EU.

Map 1 - twin cities in the EU

The adopted measures triggered a lot of discussion and local initiatives. For instance, in theHigh Rhine Region, the citizens’ dialogues carried out in Summer 2020 led to the conclusionthat the decision-making process in the situation of crisis should include: i) close coordination
with neighbouring countries, ii) maintaining local border traffic, and iii) uniform rules tominimise the number of regimes applicable in the cross-border regions31.
The cross-border regions also experienced many difficulties related to constant changes. In
2020, the Euregio Meuse-Rhine region alone received 416,000 questions from citizens andbusinesses. This aspect also demonstrates the need for closer cooperation. In this context, theEuregio Meuse-Rhine called for even more cross-border cooperation in the situation of crisis
in order to do justice to the shared responsibility for the labour market. Furthermore, in aposition paper of 21 September 2021 the Heads of State and Government of the Benelux and
Baltic countries call for a closer monitoring of the Union’s border regions as a lesson learnt
from the experience with the pandemic and the inclusion of a cross-border test into thepolicymaking process at Member State and Union level32.
•

Effectiveness and efficiency of border checks in addressing threats topublic health

The objective of border checks reintroduced during the pandemic at internal borders has been
to enforce travel bans for non-essential travel. However, the effectiveness of travel bans in thecontext of an epidemiological threat is not evident. The WHO expressly holds that “[t]ravelbans to affected areas or denial of entry to passengers coming from affected areas are usually
not effective in preventing the importation of cases but may have a significant economic and31

See letter from Marion Dammann, President of the High Rhine Commission, Head of Lörrach District
Authority (D), and Stephan Attiger, Vice-President of the High Rhine Commission, Administrator of the Cantonof Aargau (CH) ARES(2020)4394367.
32
Joint Benelux-Baltic position paper regarding the importance of impact assessments of EU-policies on borderregions, 21 September 2021, 12663/21.

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social impact.”33 Several media outlets cite WHO officials calling on States to keep theirborders open. Considering the side-effects of border closures, Michael Ryan, the WHO
emergencies director, held that “[c]ontinuing to keep international borders sealed is notnecessarily a sustainable strategy for the world’s economy, for the world’s poor, or foranybody else”34.
Therefore, the WHO continuously advised against travel and trade restrictions to countries
experiencing COVID-19 outbreaks35. However, it recognised that “[t]ravel measures thatsignificantly interfere with international traffic may […] be justified at the beginning of an
outbreak [of a pandemic], as they may allow countries to gain time, even if only a few days, torapidly implement effective preparedness measures”, but also underlined that these “must be
based on a careful risk assessment, be proportionate to the public health risk, be short induration, and be reconsidered regularly as the situation evolves.”36 The available studies
concerning the effect of travel restrictions on the spreading of COVID-19 seem to confirm
this assessment. Accordingly, following the appearance of new variants of the COVID-virus,
the Council has only recommended to discourage non-essential travel but not to issue travelbans37.
•

Response time to mitigate impacts – unavailability of mitigating measuresfrom the outset

From the start of the pandemic, the Commission worked closely with the Member States toensure a coordinated approach to border-related issues and a gradual return to free movement.
It organised regular videoconferences, both at the ministerial level and technical level,
bringing together experts from Member States, different Commission services and relevant
33

WHO, “Updated WHO recommendations for international traffic in relation to COVID-19 outbreak”, 29
February 2020: https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-internationaltraffic-in-relation-to-covid-19-outbreak; cf. WHO “Key considerations for repatriation and quarantine oftravellers in relation to the outbreak of novel coronavirus 2019-nCoV”, 11 February 2020:
https://www.who.int/news-room/articles-detail/key-considerations-for-repatriation-and-quarantine-of-travellersin-relation-to-the-outbreak-of-novel-coronavirus-2019-ncov.
34
https://www.thenews.com.pk/print/692882-border-closures-not-a-sustainable-strategy-who;cf.
https://www.cbsnews.com/news/world-health-organization-borders-shut-covid-19-not-sustainable-coronavirus/;
https://www.dailystar.com.lb/News/World/2020/Jan-31/500308-who-says-keep-borders-open-despitecoronavirus.ashx.
35
WHO, “Updated WHO recommendations for international traffic in relation to COVID-19 outbreak”, 29
February 2020: https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-internationaltraffic-in-relation-to-covid-19-outbreak; cf. WHO “WHO advice for international travel and trade in relation tothe outbreak of pneumonia caused by a new coronavirus in China”, 10 January 2020: https://www.who.int/newsroom/articles-detail/who-advice-for-international-travel-and-trade-in-relation-to-the-outbreak-of-pneumoniacaused-by-a-new-coronavirus-in-china; WHO “Updated WHO advice for international traffic in relation to theoutbreak of the novel coronavirus 2019-nCoV”, 24 and 27 January 2020: https://www.who.int/newsroom/articles-detail/updated-who-advice-for-international-traffic-in-relation-to-the-outbreak-of-the-novelcoronavirus-2019-ncov-24-jan;
https://www.who.int/news-room/articles-detail/updated-who-advice-forinternational-traffic-in-relation-to-the-outbreak-of-the-novel-coronavirus-2019-ncov;
cf.
WHO
“Key
considerations for repatriation and quarantine of travellers in relation to the outbreak of novel coronavirus 2019nCoV”, 11 February 2020: https://www.who.int/news-room/articles-detail/key-considerations-for-repatriationand-quarantine-of-travellers-in-relation-to-the-outbreak-of-novel-coronavirus-2019-ncov.
36
WHO, “Updated WHO recommendations for international traffic in relation to COVID-19 outbreak”, 29
February 2020: https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-internationaltraffic-in-relation-to-covid-19-outbreak.
37
Council Recommendation (EU) 2021/119 of 1 February 2021 amending Recommendation (EU) 2020/1475 ona coordinated approach to the restriction of free movement in response to the COVID-19 pandemic.

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EU agencies such as European Centre for Disease Prevention and Control ECDC and Frontex.
All these efforts have been made despite the lack of relevant tools. These meetings, organisedon an ad-hoc basis, remained thus voluntary, without any basis in the applicable law.
Furthermore, the necessary coordination instruments, such as guidelines andrecommendations that resulted from these discussions were adopted on an ad hoc basis, which
can be considered a good basis for ‘mitigating measures’ to be applied whenever several
Member States reintroduce border checks at their internal borders.
Table 3 – Measures adopted by the Commission in 2020*
Date of ameasureMeasure adopted by the Commission in 2020

16 March 2020

Guidelines for border management measures to protect health and ensure
availability of goods and essential services (COM(2020 1753 final).

16 March 2020

Communication: COVID-19: Temporary restriction on non-essential travelto the EU (COM(2020) 115); and successive extensions.

23 March 2020

Communication on the implementation of the Green Lanes under the
Guidelines for border management measures to protect health and ensure
the availability of goods and essential service (C(2020) 1897 final).

30 March 2020

Guidance on the implementation of the temporary restriction on nonessential travel to the EU, on the facilitation of transit arrangements for therepatriation of EU citizens, and on the effects on visa policy (COM(2020)
2050 final).

30 March 2020

Guidelines concerning the exercise of the free movement of workers during
COVID-19 outbreak (C(2020) 2051 final), especially regarding workers in
the health care and food sectors .

3 April 2020

Guidelines on EU Emergency Assistance in Cross-Border Cooperation in
Healthcare related to the COVID-19 crisis (C(2020) 2153 final).

8 April 2020

Guidance on health, repatriation and travel arrangements for seafarers,
passengers and other persons on board ships (C(2020) 3100 final).

13 May 2020

Guidance on safely resuming travel and rebooting Europe's tourism in 2020and beyond: Communication: COVID-19 Towards a phased andcoordinated approach for restoring freedom of movement and lifting
internal border controls (C(2020) 3250 final),
Communication: Tourism and transport in 2020 and beyond (COM(2020)
550 final).

11 June 2020

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Commission Communication recommending a partial and gradual lifting oftravel restrictions to the EU after 30 June, based on a common coordinatedapproach (COM(2020) 399 final). This was followed by a Commission
Proposal for a Council Recommendation on 25 June (COM(2020) 287
final), adopted by the Council on 30 June (Council Recommendation
2020/912).

September Commission proposal for a Council Recommendation to ensure that any
measures taken by Member States that restrict free movement due to the

15

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2020

pandemic are coordinated and clearly communicated at the EU level(COM(2020) 499 final), adopted by the Council on 13 October (Council
Recommendation 2020/1785) .

28 October 2020

Guidance on travellers to be exempted from the temporary travel
restrictions to the EU (including family members) (COM(2020) 686 final).

22
December Commission Recommendation on a coordinated approach to travel and2020
transport in response to the SARS-COV-2 variant observed in the United
Kingdom (C(2020) 9607 final).

* Further measures have been and are still being adopted in 2021
In the public consultation, Member States, the European Parliament and the private sector
have welcomed the coordination role assumed by the Commission in the fight against
COVID-1938. Some stakeholders (primarily carriers associations) regretted the absence ofcontingency rules from the outset, as this, in their view, could have prevented patchwork
solutions and different interpretations by Member States.
The absence of a mechanism at the EU level to deal with such emergency situations caused
delays which impacted both the border regions and the entire Schengen area and should beconsidered as a significant part of the costs outlined below in Section 2.1.3. Moreover, also
the implementation time on the ground, in the follow-up to the adoption of the different
guidelines, had an impact. Still in April 2020, weeks after the European Commission had
adopted its Communication on the implementation of the Green Lanes under its Guidelines
for border management measures to protect health and ensure the availability of goods andessential services, stakeholders (the International Road Transport Union) voiced concerns
related to “several hours of waiting time at some newly created intra-EU borders”39.
b) Long-term hurdles for persons and goods to move freely in the Schengen area
Apart from the difficulties due to COVID-19, Schengen has been exposed to many otherchallenges over the last few years. In particular, the last six years have seen persistent borderchecks at internal borders in six Member States (France, Austria, Germany, Sweden,
Denmark and Norway), that repeatedly prolonged these border checks due to different threats(migration, terrorism, shortcomings at the external borders). These border checks have been
repeatedly prolonged despite the evolution of the situation: relevant circumstances havechanged (change of migratory patterns removing the pressure from some border sections,evolution of terrorist threats towards ‘single wolf’ type), the intensity of specific threats has
decreased considerably (with the number of irregular migrants currently at a level comparable
to the period preceding 2015/2016 which, together with other measures taken in related areas,
should reduce the problem of secondary movements), and counter-measures have been
adopted at EU and national level to reinforce the external borders.

38

Workshops organised by DG HOME on 14 and 22 January 2020.
IRU, Open letter “Call to support the Community of supply chains and mobility networks in post COVID-19
de-confinement
period”,
23
April
2020:
https://www.iru.org/system/files/Call%20for%20the%20continuity%20and%20survival%20of%20commercial%
20road%20transport%20post%20C....pdf.
39

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Since the very beginning of Schengen40, Member States have always had the possibility toreintroduce temporary checks at internal borders. In the Schengen Borders Code, adopted forthe first time in 2006, a specific procedure and time-limits depending on the character of theevent posing a threat (foreseeable/non-foreseeable) were set up41.
At first, Member States used the possibility of temporary reintroduction of border checks atinternal borders quite rarely – between 2006 and 2015, border checks were reintroduced by 16
Member States in only 36 situations in total, mostly in relation to international sport or otherevents taking place in the Member State concerned. In the vast majority of cases, the checks
only lasted for a couple of days.
The situation changed in 2015, with the mass-influx of third-country nationals and theterrorist attacks in Paris. Since then, until March 2020 (i.e. the beginning of COVID-19
related reintroductions of border checks) there have been more than 250 cases of temporary
reintroduction of border checks. Six of the Member States (Austria, Germany, Denmark,Sweden, Norway and France) have kept border checks continuously in place during this entire
period.
The grounds and duration of all the instances of temporary reintroduction of border checks isavailable on the website of DG HOME42 (see also Annex 6). Five Member States (Austria,
Germany, Denmark, Sweden and Norway) referred to the extraordinary migratory pressure tojustify the reintroductions between September 2015 and May 2016. Between May 2016 andNovember 2017, the prolongations followed the Recommendation of the Council43 adopted in
the special procedure of Article 29 of the Schengen Borders Code, in view of the persistentserious deficiencies identified at one of the external borders. However, as of November 2017
these five Member States have continued border checks based on unilateral decisions, giving
secondary movements of migrants, terrorist threats and/or alleged deficiencies at the externalborders as a justification. This was the case even where the data available to the national
authorities indicated that the number of apprehensions of irregular migrants continuously
reduced since 2015 and when the number was even lower than in the period before 201544.
France is the only Member State which has been continuously carrying out checks at all its
internal borders in view of terrorist threats or international events (e.g. Tour de France). Only
recently, in the last few prolongations France has also referred to the migratory situation (andCOVID-19).

40

Article 2 of the Convention Implementing the Schengen Agreement: “1.Internal borders may be crossed at
any point without any checks on persons being carried out. 2. However, where public policy or national security
so require a Contracting Party may, after consulting the other Contracting Parties, decide that for a limited
period national border checks appropriate to the situation shall be carried out at internal borders. If public
policy or national security require immediate action, the Contracting Party concerned shall take the necessary
measures and at the earliest opportunity shall inform the other Contracting Parties thereof”.
41
In 2013, in one of the subsequent modifications of the Schengen Borders Code, a special procedure was addedfor persistent serious deficiencies at the external borders putting the overall functioning of the Schengen area atrisk (Article 29).
42
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-andvisas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control.pdf.
43
Council Implementing Decision (EU) 2016/894 of 12 May 2016 setting out a recommendation for temporaryinternal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk,
and subsequent.
44
Cf. Situation Report on Human Trafficking 2019, Ministry of Interior of Austria,
https://bundeskriminalamt.at/304/files/Jahresbericht_Schlepperei_undMenschenhandel_2019.pdf, p. 10.

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Border checks at internal borders are not sufficient to address the underlying threats. At thesame time, they are the most onerous measure to address threats to internal security or public
policy. In the public consultation carried out by the Commission, all but one responding
business associations and company/business organisations indicated they have suffered either
from delays when transporting goods across the borders (60%) and/or from other problems(60%), due to reintroduced border controls. These checks create significant costs for theprivate sector but also for the national administration, which has to engage resources on aquasi-permanent basis on often large areas of internal borders (for details see Section 2.1.3).
Accordingly, 63 % of EU citizens and all business associations and companies indicated in
the public consultation that actions for the removal of difficulties to cross internal borders
should be reinforced within the Schengen framework. 52 % of the EU citizens and 70 % of
the business organisations additionally agreed that control and monitoring of Schengen States’
compliance with the applicable rules should be improved45.
To be noted that the above general limitations of internal border controls cannot be considered
as an argument against reintroductions of internal border controls as such. In somecircumstances (e.g. beginning of COVID-19, i.e. in the circumstances different from the onesof 2015/2016) border controls at internal borders may indeed have added value. However, in
all instances of the internal border controls requiring prolongation, the same challenge ofphasing out from internal border controls and substituting them by other measures, remain amain challenge.
•

Insufficient use of compensatory measures for the absence of bordercontrols at internal borders

In particular thanks to progress on the technological side, a number of measures other thanborder checks are available to the Member States to address threats to internal security or
public policy. The use of new technologies, police checks and cross-border police cooperation
or Advanced Passenger Information (API) in the future (see section 2.2.3) are often able toachieve the same objectives as the border checks put in place by Member States, while being
more effective in this respect. At the same time, both the impact on the circulation of persons
and goods as well as the direct costs of these measures are lower when compared to borderchecks.
Based on the feedback received from the Member States in the consultation process 46, most of
the Member States have access to such measures have the possibility to deploy newtechnologies in the border areas or carry out police checks there. Annex 10 provides an
overview of the information that has been collected, while Annex 11 provides a description of
the Dutch flagship measure, the @MIGO-BORAS system. This system allows for electronic
license plate recognition, verification of relevant databases and dispatching patrols of theRoyal Marechaussee47 to carry out spot checks.
The possibility of using such compensatory measures is reflected both in the Schengen
Borders Code (Article 23) and in the 2017 Recommendation on proportionate police checks

45

Annex 2, p. 13-14.
Written contributions following the Workshop of 14 January 2021.
47
The Royal Netherlands Marechaussee is deployed from royal palaces to the external borders of Europe, andfrom airports in the Netherlands to theatres of war and crisis areas all over the world. See:
https://english.defensie.nl/organisation/marechaussee.
46

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and police cooperation in the Schengen area. While the Recommendation concerned inparticular police checks and cross-border police cooperation, it also recognised the role of
new technologies and called for privileging these measures over internal border checks.
In the consultation process, some Member States disagreed with the view promoted by theCommission that police checks are a valid alternative to border checks at internal borders, inparticular as they do not allow for immediate refusal of entry. However, it seems telling that,for instance, the Netherlands have not reintroduced any border checks at internal borders
since 2015, relying entirely on the Royal Netherlands Marechaussee forces and @MIGOBORAS48.
On the other hand, during the Expert meetings on measures allowing for a more effective
cooperation within the Schengen Area, on 14 and 22 January 2021, one representative
underlined the industry’s openness for new technologies, but emphasized that these should bein line with international standards, e.g. the IATA. At the same meeting, one carrier’s
representative acknowledged that the use of technology could facilitate the work of borderservices, holding that new technology solutions must be coordinated by clear rules and may
not lead to delays or increased waiting time. The results of the public consultation show ahigh approval rate of companies for the use of compensatory measures. 80% of the business
representatives agreed that border controls should be substituted by alternative measures
where possible. What is more, all participating business representatives expressed theirsupport for reasonable automated control measures49.
1.2.2. Discrepancies in the application of travel restrictions at the externalborders undermining the trust and impacting the credibility vis-a-vis third
countries
Following the outbreak of the COVID-19 and in the absence of adequate rules in the
Schengen Borders Code, the Member States took an uncoordinated approach in particular as
regards their external borders: some banned all travels from third countries while others
adopted a more lenient approach. In response to such disarray amongst Member States, inMarch 2020, the Commission called for a coordinated decision on applying travel
restrictions on non-essential travel from third countries into the Schengen area. The
purpose of this call was to avoid some Member States letting in travellers from countries witha highly problematic epidemiological situation which could have increased the risk for theentire Schengen zone and created additional incentives for other Member States to set up
internal border controls in the Schengen area, in order to prevent these persons from crossing
into their territories. This call was followed by all EU Member States (with the exception of
Ireland) and all Schengen Associated Countries and was later included in the 2020/912
Council Recommendation50.
However, although Member States have agreed among themselves on a list of third countries
for which alone the restriction on non-essential travel could be lifted, they have applied the
Recommendation referred to above in very different ways. Only some apply the list of
countries in full, while others decided to lift the restrictions only to some or even none of the48

https://www.marechausseecontact.nl/pdf/factsheet-migo-boras.pdf and Annex 11.
Annex 2, p. 14.
50
Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU andthe possible lifting of such restriction.
49

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countries on the list. Other Member States lifted the restrictions to third countries that were
not on the list at all, thus putting at risk the overall functioning of the Schengen area.
The divergences in implementation are shown by state of play of 16 April 2021: 14 Member
States (Croatia, Cyprus, Estonia, Finland, Greece, Iceland, Latvia, Liechtenstein, Lithuania,
Luxembourg, Portugal, Slovenia, Spain and Switzerland) were open to non-essential travelfrom the listed third countries, 6 Member States (Belgium, Denmark, France, Hungary,
Norway and Slovakia) were closed to any third country, while the remaining 10 Member
States used the list with a considerable degree of flexibility. Furthermore, 13 Member States
were open for non-essential travel from a wide group of third countries not listed in therelevant Annex to the Council Recommendation. This concerned in particular Bulgaria (18non-listed third countries), Cyprus (16), Greece (4), Italy (5), Lichtenstein (5), Malta (6), theNetherlands (5) and Poland (6).
Furthermore, by the end of March 2021, a number of Member States were already using orplanning to use proofs of vaccination or recovery as a tool to lift Covid-19 related restrictions
while Council Recommendation 2020/912 still does not provide for that possibility. On 17
March 2021, the Commission made a proposal for a Regulation on an interoperable healthcertificate51, the so-called Digital Green Certificate, to facilitate free movement during the
COVID-19 pandemic. Following the approach that restrictions to free movement “of persons
who do not pose a risk to public health, for example because they are immune to and cannot
transmit SARS-CoV-2, should not be restricted, as such restrictions would not be necessary toachieve the objective pursued”52, this certificate shall certify vaccination against COVID-19,
negative test results and recovery from COVID-19 and be valid throughout the Union. The
European Parliament approved the parliamentary scrutiny of the proposal under the urgent
procedure53. However, this proposal and a second one extending the provisions to third
country nationals legally staying or residing in the European Union54 only regulate
movements within the Schengen area, and not travel to the EU.
For instance, one Member State announced mid-March that as of 26 March, any third country
national carrying a proof of vaccination or recovery from Covid-19 would be able to enter thecountry, irrespective of the reason of travel. Two other Member States have both concluded
agreements with Israel to exempt vaccinated travellers from testing and quarantine.
As to the application of the exemptions from the travel restrictions provided for in theCouncil Recommendation (in particular travel of family members of EU citizens and residents
and travel for an essential function or need), as reported by Fragomen Europe Immigration
Taskforce, the application of these exemptions is often left to the discretion of the border
guards who are sometimes not sufficiently aware of the changing rules and the documents thatcan be supplied as evidence. For instance, certain Member States require an “essential travel
certificate”, to be issued by the national authorities, for entry of persons exempted from the51

Proposal for a Regulation of the European Parliament and of the Council on a framework for the issuance,
verification and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate freemovement during the COVID-19 pandemic (Digital Green Certificate), COM/2021/130 final.
52
COM/2021/130 final, recital 7.
53
Cf. Rule 163, Rules of Procedure of the European Parliament.
54
Proposal for a Regulation of the European Parliament and of the Council on a framework for the issuance,
verification and acceptance of interoperable certificates on vaccination, testing and recovery to third-country
nationals legally staying or legally residing in the territories of Member States during the COVID-19 pandemic(Digital Green Certificate), COM(2021) 140 final.

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travel restriction. While such certificate allows travellers to face less issues at the border,
difficulties are experienced when applying for the certificate at the consulate, as the latter has
full discretion in determining whether the trip is considered as essential travel.
On this point, it is interesting to note that 83% of the EU citizens who replied to thestakeholders’ consultation would like coordination in crisis situations to be reinforced.
Similarly, being asked if a coordination at EU-level of measures applicable at the externalborders of the EU in response to common threats such as a pandemic is beneficial, 90.91% of
the EU citizens agreed and only 5.05% disagreed. Likewise, 90% of the business associations
and company/business organisations considered the coordination at EU-level of measuresapplicable at the external borders of the EU in response to common threats such as apandemic as beneficial. 55
1.2.3. Impacts of the identified problems
The two identified problems are: i) border checks at internal borders which are long-lasting
and applied against abstract threats or are used as a first aid measure and as such become an
unjustified hurdles to persons and goods moving in the Schengen area (2.1.1), and ii)
discrepancies in the application of travel restrictions at the external borders undermining thetrust and impacting the credibility vis-a-vis third countries (2.1.2). While the size of therecovery plan for rebuilding post-COVID-19 Europe amounting to EUR 1.8 trillion may givean indication when assessing the overall damage caused by the pandemic to the EU, there isno data available at this stage on how much of that damage has been caused by border checks.
In general, data both on the intended positive effects of reintroduced border controls as wellas the negative effects (also of the long-lasting abstract border checks in place for several
years) are difficult to come by. One of the reasons for this lack of data is that Member States
are obliged to report on the effects and side-effects of their border controls only once thechecks have been lifted again (Article 33 SBC). Therefore, the six Member States which
continuously prolonged the checks over the past five years have not yet had to report on theimpact of the border controls.
As regards the internal border checks that were reintroduced during the COVID-19 crisis, thesituation is slightly different. Member States that reintroduced border checks in response to
the first wave of COVID-19 and lifted them by the end of June 2020 submitted their reports
but, unfortunately, with great variations as concerns the quantity and the quality of theircontents. For more information see Annex 12.
Given this lack of specific data, the efforts of calculating the cost of non-Schengen by theCommission in 2016 and by the European Parliament in 2017 remain the main point ofreference to demonstrate the impacts of border checks if maintained for a longer period oftime, irrespective of their ground. Therefore, this section uses them as a basis for assessing theimpacts of the problems identified in sections 2.1.1 and 2.1.2, but also builds on the inputs
received from stakeholders during the public consultation.

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See Annex 2, p. 13.

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1.2.3.1. Impacts of the long-lasting border checks at the internal borders
As outlined in the Communication ‘Back to Schengen – a Roadmap’56, the Commission
estimated in 2016 that a full reestablishment of border controls to monitor the movement ofpeople within the Schengen area would generate immediate direct costs for the EU economy
in a range between EUR 5 and EUR 18 billion annually57. These costs would be concentrated
on certain actors and regions but would inevitably impact the EU economy as a whole. While
the free exchange of goods within the EU amounts to more than EUR 2,800 billion in valueand 1,700 million tonnes in volume, the highest and most immediate impact of bordercontrols would be felt by the road haulage sector, with EUR 1.7 to EUR 7.5 billion of
additional direct costs each year.
A study of 2016 commissioned by the European Parliament (see Annex 4)58 on the same
topic even suggests annual costs of between EUR 6.5 billion and EUR 13 billion for the roadfreight sector if internal border controls were reintroduced at all internal borders. In the caseof limited reintroductions by the Member States having internal border controls in place inApril 2016,59 the annual costs for the road freight sector are estimated to reach EUR 0.7
billion to EUR 1.3 billion annually60. Data on the specific situation of France indicated thatinternal border controls leading to an assumed waiting time of 30 minutes would cause a
direct economic loss of EUR 62 million for both, import and export61.
According to the Roadmap, these additional costs would have a particularly harmful impact
on sectors that operate on small margins and/or where transport presents a highpercentage of the costs. Sectors indicated as potentially particularly affected wereagricultural and chemical sectors as well as the transport of raw materials. In the medium
term, costs of transport that are unduly increased by delays in border controls could hurt theefficient development of EU value chains and the competitiveness of the EU economy as awhole.
Moreover, the estimates of the Commission of 2016 demonstrated that with 1.7 million
workers in the EU crossing a border every day to go to their jobs, the reintroduction of borderchecks at all internal borders would cost commuters and other travellers between EUR 1.3
and EUR 5.2 billion in terms of time lost62. More importantly, long waits at the borderwould discourage people from looking for cross-border opportunities in the labour market,
reducing the pool of potential workers. This would in the medium term reduce the economic
efficiency of some regions. In the case of France, the increased costs for cross-border workers
would lead to a decrease in the number of workers willing to cross the border to reach their56

COM(2016)120, for full reference see Annex 16.
Estimated for road freight transport, cross border passenger mobility, tourism and corresponding
administrative costs at the border.
58“Cost of non-Schengen: the impact of border controls within Schengen on the Single Market”,
https://www.europarl.europa.eu/RegData/etudes/STUD/2016/578974/IPOL_STU(2016)578974_EN.pdf.
59
Austria, Slovenia, Hungary, Sweden, Norway, Denmark, plus Greece, for which, at that time, thereintroduction of temporary internal border control due to persistent serious deficiencies relating to externalborder control under Article 29 Schengen Borders Code was discussed.
60“Cost of non-Schengen: the impact of border controls within Schengen on the Single Market”, p. 29, 37.
61
France Strategie “The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016,
pp. 6f.
62
Slightly higher numbers “Cost of non-Schengen: the impact of border controls within Schengen on the Single
Market”, p. 37: The total costs for commuters for reintroducing border controls at all internal borders range from
1.7 billion EUR to 6.1 billion EUR per year.
57

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work place by more than 5,000 workers if the waiting time increased by 10 minutes, or bymore than 10,000 workers if the waiting time increased by 20 minutes, which would equal aneconomic loss of EUR 150 million or EUR 300 million respectively (without accounting
potential unemployment-related costs)63.
As a long-term consequence of systematic permanent border controls in the Schengen area,
the trade between Member States would decrease between 10 and 20% within the 10 year
period from 2016 to 202564. This would lead to a decrease of the Schengen area’s GDP by
0.8%, equivalent to more than EUR 100 billion65. For France alone, the loss would amount to
0.5% of the GDP, equalling EUR 10 billion66.
According to another study67, the reintroduced internal border controls in the Schengen area
notified to the European Commission from summer 2015 until April 201668 have reduced thetrade in goods and services by 1.3% compared to 2011, which corresponds to an annual
decline in trade volume of EUR 70.19 billion and a decrease of the aggregate EU real GDP by
approximately EUR 12.5 billion, which equals 0.10% of the GDP. In general, the data of thisstudy suggests, that smaller and peripheral States would be much stronger affected than thelarger and/or central ones.
According to another study specifically with regard to Germany, developing the hypothesis ofpermanent border checks in the aftermath of the migratory crisis, the reintroduction of
permanent border checks at internal borders would lead to a growth loss of EUR 77 billion
between 2016 and 2025 for Germany, and EUR 470 billion in total for the EU69.
Specific data on the costs of border controls for different sectors is difficult to collect as thefacilitation of border crossing along the internal borders of the EU must be carried out in a
non-discriminatory manner. For instance, the Green Lanes system that was established in
March 2020 in response to COVID-19 does not distinguish between different types of goods
or origins and destinations of the vehicles70. Moreover, such a distinction would add an
additional layer of difficulty and further delays at the border.
•

Specific impacts on the air travel industry

A study by the association “Airlines for Europe” identifies the “reintroduction of bordercontrols within the Schengen area” as one of the gaps in the full implementation of Europe’s

63

France Strategie “The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016,p. 5.
64“The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016, p. 1.
65“The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016, pp. 9f.
66“The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016, p. 11.
67
Gabriel Felbermayr, Jasmin Gröschl, Thomas Steinwachs “Trade costs of border controls in the Schengenarea”, 27 April 2016: https://voxeu.org/article/trade-costs-border-controls-schengen-area.
68
While the study does not list the States concerned, according to the European Commission’s list of temporarily
reintroduced border controls, from summer 2015 to April 2016, internal border controls during that period werereintroduced by AT, BE, DE, DK, FR, HU, MT, NO, SE and SI.
69
Bertelsmannstiftung, GED Study „Departure from the Schengen Agreement Macroeconomic impacts on
Germany andthecountries
oftheEuropean
Union“,2016:https://www.bertelsmannstiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikationen/NW_Departure_from_Schengen.pdf.
70Communication from the Commission on the implementation of the Green Lanes under the Guidelines forborder management measures to protect health and ensure the availability of goods and essential services 2020/C
96 I/01, C/2020/1897.

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Single Aviation Market71. The study estimates that in the period from 2016-2019, on average
145,394 air passengers were affected by internal border controls, with the total costs for air
passengers caused by reintroduced internal border controls ranging between EUR 291 million(calculating with additional cost of EUR 2 per border crossing) and EUR 872 million (EUR 6
per border crossing) per year”72.
The persistence of border checks creates significant challenges for the airport operators. As
highlighted by ACI (Airport Council International) “the reintroduction of border control atinternal borders leads to the physical separation of an additional passenger category(passengers on Schengen internal flights subject to border control). This new passenger
category is currently separated from passengers on domestic flights with no border control
and from those on international flights subject to border control. ACI EUROPE believes that
airports have not been designed to comply with such a requirement on a permanent basis”73.
•

Impacts on the cross-border regions

While not all regions have been affected equally74, it is clear that the economic and social
impacts of persisting border checks are the most visible on a local scale. For instance, theØresund Strait between Sweden and Denmark is crossed by 95,900 persons on a daily basis(both directions, with 42,900 persons traveling by car, 32,100 by train across the Øresund
Bridge and the rest by ferries)75. According to the Oresundsinstituttet76, the measures adopted
by Sweden and Denmark in 2016 at this internal border including border checks amounted to
SEK 152 million, for the first half a year since the introduction of ID and border checks, or
6,600 extra hours on the train daily for those travelling over the bridge, and 332,000 fewer job
opportunities in Zealand accessible at that time within a one-hour commute from Malmo
Central as compared to the period before the reintroduction measures at this internal border.
The survey carried out for the County Administrative Board77 demonstrated that 39% of thenearly 400 interviewed considered changing the job and seeking employment in their countryof residence, while 26% considered moving to their country of employment, with only 18%
not planning to stop commuting. Another study referred to by the Oresundsinstituttet indicatesthat 64% experienced an increase in stress, and 70% were strongly affected by not knowing
when they would arrive78.

71

Airlines For Europe, Jennifer Janzen, “Study: Fully Implementing Europe’s Single Aviation Market Could
Save the EU Economy €37 Bn Per Year”, April 2020: https://a4e.eu/publications/study-fully-implementingeuropes-single-aviation-market-could-save-the-eu-economy-e37-bn-per-year/.
72
ICCSAI – University of Bergamo, “Cost Of Non-Europe in Aviation”, February 2020:
file:///C:/Users/bacheli/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downl
oads/a4e-study-iccsai-the-cost-of-non-europe-in-aviation-conea-2020-02-full-study.pdf, p. 84.
73
ACI input of 15 March 2021 in the public consultations.
74
See the territorial economic impact of COVID-19 in the EU. A RHOMOLO Analysis:
https://ec.europa.eu/jrc/sites/jrcsh/files/jrc121261.pdf.
75
https://www.oresundsinstituttet.org/fact-sheet-the-effects-of-the-id-and-border-checks-between-scania-andzealand/.
76
https://www.oresundsinstituttet.org/.
77Skåne’s report Utvärdering av effekter av tillämpningen av förordning om vissa identitetskontroller(’Evaluation of the Effects of the Adoption of the Regulation of Certain Identity Checks’).
78
The study by a researcher from the Royal Institute of Technology in Stockholm, with responses from 900 train
commuters, and the report (in Swedish) was published by Øresundsinstituttet in June.

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A Commission case study of 2017 on this specific border region confirms these effects 79: theborder controls introduced in 2016 have added to the already existing cross border difficulties
at this specific border section. A report commissioned by the Chamber of Commerce andIndustry of Southern Sweden mentioned in the study estimates that the border controls
between Sweden and Denmark have led to societal costs of SEK 1.5 billion (or EUR 150
million). Two thirds of these costs related to delays in cross-border traffic, while theremaining share relates to the shrinking market potential (e.g. reduced number of potential
jobs for employees; smaller pool of workers available to employers)80.
In the case of the limited reintroduction of internal border controls in the Member States
having internal border controls in place in April 2016, the total annual costs for commuters
would amount to between EUR 168 million and EUR 606 million81. As a concrete example
for the impact on one Member State serves the data available for the commuters residing inFrance, the country of origin of most commuters in the EU82. 350,000 French residents crossthe borders on a daily basis to work in Belgium, Germany, Luxembourg, Switzerland orSpain. Based on a value of time of EUR 10 per hour, the costs of an assumed delay of 10
minutes due to the reintroduced border controls would amount to EUR 1.7 per bordercrossing, accumulating to EUR 723 a year, calculating with 217 working days. For a 20
minutes delay, these cost would double, amounting yearly to over EUR 1,400 per commuting
worker. The total social-economic costs for French commuting workers for an additional 10
minutes spend at border controls are estimated to amount to EUR 250 million per year, for an
additional 20 minutes, it would amount to EUR 500 million83.
•

Impacts on the administration

Finally, the estimates of the costs of non-Schengen referred to above indicate that between
EUR 0.6 and EUR 5.8 billion of administrative costs would have to be paid by governments
due to the need for increased staff for border controls. The costs related to the physicalestablishment of border controls are estimated at EUR 7.1 billion for the whole Schengen area
(EUR 0.7 billion for the above mentioned seven Member States)84. Notably, the costs for thephysical establishment of border controls have a higher impact on the total costs when the
period of the reintroductions is shorter85. As the study assesses a scenario of a two-year
reintroduction and an indefinite reintroduction, the situation experienced during the COVID19 pandemic of Member States reintroducing border controls repetitively over short periodsof time, sometimes not continuously, might be different. As these costs fall under the79

Easing legal and administrative obstacles in EU border regions, Case Study No. 2 Labour mobility Obstacles
for cross-border commuters (Denmark – Sweden).
80
3 Handelskammaren - the Chamber of Commerce and Industry of Southern Sweden (2016), Kontrollernas
kostnadekonomiska
konsekvenser
av
ID-kontrollernaiÖresundsregionen,
http://www.handelskammaren.com/press/nyheter/nyhet/artikel/kontrollernas-kostnad-ekonomiskakonsekvenserav-id-kontrollerna-i-oeresundsregionen.
81
Cost of non-Schengen: the impact of border controls within Schengen on the Single Market, 2016, p. 29.
82
Cf. study by MKW Wirtschaftsforschung GmbH, commissioned by the European Commission “Scientific
Report on the Mobility of Cross-Border Workers within the EU-27/EEA/EFTA Countries”, p. XI:
https://ec.europa.eu/futurium/en/system/files/ged/mkw_workers_mobility.pdf.
83
France Strategie “The Economic Cost of Rolling Back Schengen”, La Note d’Analyse No. 39, February 2016,p. 5.
84
Cost of non-Schengen: the impact of border controls within Schengen on the Single Market, 2016, p. 9.
85
Cost of non-Schengen: the impact of border controls within Schengen on the Single Market, 2016 p. 26.

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exclusive responsibility of the national administrations, they are not reported to theCommission.
•

Impacts on border management capacity

The reintroduction of border checks at internal borders requires significant resources. In timesof limited public resources, the necessary staff is normally made available by temporary
reassignment from other services, leading to shortages in staff in the services of origin. For
instance, an unannounced Schengen Evaluation visit to the Nice and Orly airports in 2019
revealed that these two airports lack trained border guards to control travel from third
countries, while France has been carrying out border checks at the border with Italy since2015.
1.2.3.2. Impact of reintroduced checks at internal borders due to COVID-crisis
While the border checks due to the COVID-crisis cannot compare in terms of duration withthe long-lasting border checks introduced by the six Member States referred to above, theseborder checks have been introduced temporarily by a much higher number of Member States(17). They aggravated the trend that the Single Market was hit disproportionately by the
COVID-related restrictions in comparison to national GDPs. These restrictions caused major
disruptions to the free flow of goods, services and people, resulting in a fall of intra-EU tradeby 24% in Q2 and Q3 2020, while GDP fell by 7% 86. Furthermore, due to the lack of
coordination and the rapidly changing measures the costs for citizens and businesses to adapt
to these changes can be estimated to be much higher than those of long-lasting border controls(see above). The lack of uniform application of measures at external borders has also led to alack of clarity among travellers coming from third countries, leading to numerous queries via
EU Delegations, overall impacting on the predictability of travel and credibility of themeasures taken.
In some “twin cities” (see Error! Reference source not found.) measures taken at the
beginning of the COVID-19-crisis prevented school children from going to school and elderly
people from going to the supermarket closest to their homes as these schools andsupermarkets were located on the other side of a hard border. The decision of Spain andPortugal in response to the first wave of COVID-19 to close the border, leaving open only
eight border crossings87 on one of the longest internal borders of the EU, led to the following
comments: “On a map, this seems fair, but this section of the border is the busiest of all the
Spanish-Portuguese border, and there are three EGTCs and four Eurocities, which gives anidea of the importance, permeability and interrelationship of these territories. These
Eurocities were cut off, in many cases they are simply separated by a bridge and they werecompletely divided. ”88 Moreover, on the Galicia-Norte border, there are more than 12,000
cross-border workers who cross every day and had to make journeys of at least 50 km and, insome cases, 100 km or even more due to the border closure.
Finally, the border regions expect that, if no solution is found to this problem, theattractiveness of cross-border employment is going to be affected considerably. In particular,cross-border workers have come to realise during the pandemic that they are particularly

86

Annual Single Market Report 2021, SWD(2021) 351 final, p. 9.
Only after a while a ninth crossing was reopened.
88
Xosé Lago, Euroregion Galicia-Norte de Portugal.
87

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vulnerable due to their status. Not being able to perform work cross-border raised the issue ofthe State competent for taxation purposes89. To address this issue, some Member States
adopted temporary arrangements: for instance, Belgium and the Netherlands adopted anagreement valid from 11 March 2020 until 31 May 2020. However, the approach to this issue
may differ from one cross-border region to another.
2.2.

What are the problem drivers?

The identified problems are driven by the drivers set out in sections 2.2.1- 2.2.6 below.

Figure 1 - Problems, Problem drivers and Objectives

1.2.4. Disproportionate and inadequate use of border checks at internal borders
Article 72 of the Treaty on the Functioning of the European Union clearly states that “ThisTitle [Title V, Area of Freedom, Security and Justice] shall not affect the exercise of the
responsibilities incumbent upon Member States with regard to the maintenance of law andorder and the safeguarding of internal security”. Accordingly, Member States remain in thebest position to assess if there is a threat and how to address it. In view of that, they may
adopt unilateral measures, without engaging in a discussion on their effects on the rest of theEU.
This approach has been particularly visible during the COVID-19 crisis where internal borderchecks have been reintroduced repeatedly despite their impact on the economy and the factthat the added value of that measure in containing the spread of the virus is not proven and89

The main rule is that the right to levy tax on the employment income is attributable to the home country. In
case an employee normally works in another country than the home country, the right to levy tax is primarily
allocated to the country in which the work is performed. When the employee work from home the right to levy
tax is no longer allocated to the country in which the work would normally be performed.

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even largely contradicted by the European Centre for Disease Prevention and Control(ECDC)90.
The same approach has also manifested itself during the last six years, when some Member
States prolonged border checks at their internal borders over many years despite changing
circumstances and refused entry to thousands of third country nationals on the grounds of
insufficient documents. Such unilateral decisions had an impact on the neighbouring Member
State that remained confronted with the problem91. For more information on the evolution ofthese threats from the perspective of the Commission see Annex 7. The effectiveness of suchcontrols is difficult to quantify, as Member States only have limited reporting obligations andin many cases prefer not to share comprehensive data on national security operations.
The disproportionality furthermore results from the fact that the reintroduction of internalborder controls generates in the long term high costs (see 2.1.3.1), while there is an indicationthat alternative measures such as police checks or bilateral agreements and arrangements forthe readmission of irregular migrants generate lower costs, but assuring the same results. The
Dutch @MIGO-BORAS system, for example, can be used to check passing vehicles andselect those to be stopped and examined without the need for a continuous physical control
procedure at the border92. Any difficulties reported by some Member States as regards theapplication of the readmission agreements should not justify the reintroduction of internalborder controls, but rather modifications in the legal framework for such agreements.
1.2.5. Lack of sufficient coordination in the EU (absence of a platform at EU
level to discuss measures affecting Schengen in a crisis situation)
Under the Schengen rules (Article 27(5) SBC), Member States are obliged to consult with theother Member States and the Commission if they are considering reintroducing border checks
unilaterally at internal borders. These consultations have to take place at least 10 days
before the planned date of reintroduction. The purpose is to organise, where appropriate, amutual cooperation between the Member States for the duration of the border checks and to
examine the proportionality of the measures as compared to the underlying events, i.e. thethreat to public policy or internal security.
This process is clearly not suitable for emergency situations such as the outbreak of a highly
contagious disease. Indeed, the COVID-19 experience showed that Member States act on
their own without consulting or even in some cases informing other Member States even90

https://www.ecdc.europa.eu/sites/default/files/documents/Considerations-related-to-measures-for-travellersreduce-spread-COVID-19-in-EUEEA.pdf.
“Border closures refer to closing of international borders and aim to reduce the risk of importation fromcountries with high transmission by implementing travel restrictions to or from an affected area. Based onevidence from modelling studies mainly related to influenza pandemics, border closures can delay the
introduction of the virus into a country but only if they are almost complete and are rapidly implemented during
the early phases of an epidemic, which is only feasible in specific contexts (e.g. for small, isolated, island
nations). Available evidence therefore does not support recommending border closures, which will causesignificant secondary effects and societal and economic disruption in the EU.”, with reference to World HealthOrganization (WHO). Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic
andpandemic
influenza,
12
May
2020:
https://apps.who.int/iris/bitstream/handle/10665/329438/9789241516839-eng.pdf?ua=1.
91
For instance, in 2017, at one temporary authorised border crossing point at the French/Italian land border(Menton) alone, 43,994 persons have been refused entry mostly for not having the necessary travel documents.
92
See Annex 11.

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when confronted with the same threat. In addition, as the experience of the last year
demonstrates, it is also not suitable for events affecting more than two Member States. As aresult, until the ad hoc initiative of DG HOME to organise conferences twice a week and theactivation of the Integrated Policy Crisis Response (IPCR)93 at the level of the Council there
was no EU structure to discuss and co-ordinate the measures adopted in line with the evolving
circumstances. In particular, the diversity of the aspects at stake made the discussions on theborder measures taken in response to the COVID-19 pandemic in the Council very difficult asnone of the existing Council formations had a sufficiently broad scope. IPCR focused at thestart of its activation under the Croatian Presidency on the health aspects, and only later
started to take into account the effects of COVID-19 on other policy areas, such as bordermanagement. Therefore, the issue lies not on the efficiency of the IPCR which proved to be auseful tool but on the lack of a pre-agreed and formalised institutional answer to a healthcrisis.
1.2.6. Insufficient use of measures other than border checks at internal borders
Member States have at their disposal a number of measures that can achieve the same
objectives as border checks at internal borders.
Although the 2017 Recommendation on proportionate police checks and police cooperation in
the Schengen area has been positively received by the Member States, it has not triggered any
substantial changes. Based on the feedback from the Member States in the workshops
organised in 2017 in follow-up to the Recommendation94 and the recent workshop organised
as a part of the public consultation process for the Schengen Strategy95, it appears that the
Recommendation has not led to any legislative or operational changes, with only France
stating that they have modified the rules applicable to border checks in the border areas andbeyond. Even if many Member States claim that the police checks carried out on theirterritory comply with the Recommendation and that the rules described therein provide forsufficient flexibility96, in the absence of quantitative data from the Member States, it remains
to be noted that none of the Member States carrying out border checks at internal borders
since 2015 has actually lifted these checks and reinforced police checks instead (see Annex
10).
Moreover, during the public consultations, some Member States signalled the problem thatthe conditions of use of compensatory measures considered as alternatives to border checks(use of new technologies such as video surveillance, number plate recognition systems ordrones) are not clearly specified or defined. For some, these measures should not be usedinstead of border checks at internal borders, but in addition to them. One Member State
considered that maintaining police measures for an unlimited period of time at internalborders would be unacceptable97. Similarly, 72.66% of EU and non-EU citizens agreed thatborder controls at internal borders should be substituted, whenever possible, by nonsystematic alternative measures, such as police checks and modern technologies98.

93

See https://www.consilium.europa.eu/en/documents-publications/publications/ipcr/.
On 10 July 2017 DG HOME organised a workshop on the implementation of the Commission
Recommendation on proportionate police Checks. The workshop was attended by AT, DE, DK, FR, HU, IT, NL,
NO, SE, SI
95
Workshops organised on 14 and 22 January. For more details see Annex 2.
96
In particular AT, CZ, DE, FI, HU.
97
See HU written contribution.
98
Annex 2, p. 13.
94

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Furthermore, any future developments concerning the collection of Advanced Passenger
Information (API) data on intra-Schengen air connections could be challenged under thecurrent wording of Article 23 of the Schengen Borders Code referring to compensatory
measures as leading to prohibited measures having effect equivalent to border controls. To
recall, for a number of Member States, API (notably in combination with Passenger Name
Records (PNR)) data have a huge potential in terms of enhanced security at a relatively small
expense and without interference with travel flows99. For more information on API and PNR
see Annex 13.
1.2.7. Absence of rules concerning the application of extraordinary measures atthe external borders during crisis situations affecting several Member
StatesThe Schengen rules provide for common standards concerning border checks on persons atborder crossing points and border surveillance at the external borders. These checks are basedon the verification of the entry conditions for third country nationals. The idea behind theserules is that, if a borderless Schengen area is supposed to function, there must be agreement
between all countries concerned and a common practice on who can enter this area.
One of the entry conditions is that the third country national should not be considered to be athreat to public health, which has to be assessed on a case-by-case basis. In March 2020, theCommission called upon the Member States to apply a temporary travel restriction to all nonessential travel from third countries in order to coordinate practices in this regard andprovided a list of derogations per category of persons that should be exempted from the travel
restrictions100. Council Recommendation of 30 June 2020101 also provided a list of third
countries whose residents should be exempted from such general travel restriction. As set out
above, some Member States went beyond the scope of that annex, authorising residents fromother third countries to access the European Union. For this reason, on 22 February 2021102,
Commissioners Johansson and Reynders sent a joint letter to the Member States reminding
them of the rules agreed in the Recommendation. Nevertheless, and as indicated above, withstate of play 16 April 2021, 13 Member States were open for non-essential travel from a widegroup of third countries not listed in the annex.
2.3.

How likely is the problem to persist?

While there are good chances to address the current COVID-19 pandemic with the worldwide vaccination programme, similar problems may occur at any moment in the future. Thismeans that the absence of ‘ready to use’ contingency procedures and safeguards can again
become a problem any time.

99

Finland believes that a lot can be done with pre-entry passenger data, such as PNR or API, also inside the
Schengen area. Collecting and analyzing this information would have very little impact to free movement, but itwould give a possibility to do targeted checks and improve situational awareness. Also Norway sees anopportunity in the upcoming revision of the API-Directive. Already now Norwegian authorities receives inessence API-information from ferries bound for Norway from Denmark, Sweden and Germany. The pre-arrival
screening of this information is in its experience an efficient way of controlling large passenger flows while
minimizing the need for physical controls.
100
Communication of 16 March 2020, COM(2020) 115 final.
101
Council Recommendation of 30 June, 2020/912 on the temporary restriction on non-essential travel into the
EU and the possible lifting of such restriction.
102
ARES(2021)1401158.

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As regards the persistent border checks and the insufficient use of compensatory measures,the key to the evolution of the problem is the approach of Member States, which, on the one
hand will not be sufficiently accountable for the choice of border checks at internal borders toaddress the identified threat and on the other hand may be sometimes concerned that theavailable compensatory measures could be considered as border checks in disguise.
Despite the efforts of the Commission over the last few years (see Box 3 below), hardly any
progress has been achieved in the past. In particular, despite the efforts of the Commission toconvince Member States to go back to a real Schengen area, the only (limited) step in thisdirection has been made by Germany that has reduced the scope of the long-lasting borderchecks at its internal borders, by lifting in spring 2018 such checks with regard to the airconnections from Greece (that had been in place since November 2017).
Box 3– Actions of the Commission since 2015
2015 – Opinion on necessity and proportionality of border checks at internal borders in Austria
and in Germany C(2015)7100
2016 – Back to Schengen – a Roadmap COM(2016)1202017 – Commission Recommendation on proportionate police checks and police cooperation in
the Schengen area C(2017)3349
2017 – Proposal on the amendment of the Schengen Borders Code COM(2017)571
2018 – High Level meeting with the Ambassadors of the Member States having border checks atinternal borders in place at that time and the Member States the most affected by such checks
2017-2019 – Requests from DG HOME for additional information following the received
notifications
2020 – First Schengen ForumThe Commission retains the right to issue an opinion on the necessity and proportionality of
any upcoming prolongations of border checks at internal borders, or even to launch
infringement procedures. However, such a step does not guarantee that the core of the
problem would be permanently addressed – i.e. the use of border checks rather as a first aid
and not a last resort measure. Thus, without any intervention the situation at the internalborders will continue to be exposed to the changing national political climate, while a
European approach which could take into account the overall interest of the Schengen area
will continue to lack.
The ongoing efforts to improve the management of the external borders (operationalisation of
EBCG, implementation of the new IT architecture with new systems ETIAS, EES, ECRISTCN and interoperability103 of information systems reinforcing the relation between pertinent
databases), as mentioned above and further explained in Annex 14, are expected to improvethe controls at external borders and as such should help in rebuilding trust among the Member

103

Regulation (EU) 2018/1240, OJ L 236, 19.9.2018, p. 1; Regulation (EU) 2017/2226, OJ L 327, 9.12.2017,p. 20 ; Regulation (EU) 2019/816, OJ L 135, 22.5.2019, p.1-26 ; Regulation (EU) 2019/817, OJ L 135,
22.5.2019, p. 27

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States. However, even a timely implementation of these new rules will not address theconcerns of Member States linked to a perceived unsatisfactory level of security due to crossborder crime and terrorism. Moreover, based on the five years report on the functioning of the
Schengen Evaluation Mechanism104 it is confirmed that already now there are no major
deficiencies in the management of the external borders.
Once the proposals accompanying the Pact on Migration and Asylum are adopted105,
secondary movements of irregular migrants as well as ‘asylum’ shopping by asylum seekers
should be better controllable than currently. Similarly, the terrorist threat should be better
manageable thanks to the measures and steps identified in the EU Security Union Strategy as
adopted in July 2020. However, it is not likely that secondary movements or terrorism will
ever be entirely eradicated. Therefore, some Member States might continue to consider
themselves as being more exposed to these challenges than other Member States, and hence,
entitled to continue border checks at internal borders.
The planned modification of the API Directive and adoption of a code for police
cooperation which are currently being explored and might lead to legislative proposals later
this year106, would help to expand the available tools for compensatory measures to borderchecks at internal borders. These initiatives will be an important step to boost the use ofalternatives to checks at internal borders. However, their adoption will provide only a partial
solution as it will not tackle the differences between authorised measures related to theexercise of police powers and the use of new technologies and measures having effectequivalent to border checks at internal borders.
3.

WHY SHOULD THE EU ACT?

3.1.

Legal basis

This impact assessment concerns the measures adopted by the EU with regard to the absenceof any controls on persons, whatever their nationality, when crossing internal borders, andalso the measures concerning the checks to which persons crossing external borders are
subject. This means that any legislative proposal following this impact assessment would bebased on Article 77 (2)(b) and (e) TFEU.
3.2.

Subsidiarity: Necessity of EU action

Action in the area of freedom, security and justice falls within an area of competence shared
between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, thesubsidiarity principle is applicable by virtue of Article 5(3) TEU, according to which theUnion shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.
The conditions under which internal border checks can be reintroduced are regulated in the
Schengen Borders Code. Any modification of these rules would require EU legislation.

104

See footnote 34 above.
https://ec.europa.eu/info/publications/migration-and-asylum-package-new-pact-migration-and-asylumdocuments-adopted-23-september-2020_en.
106
COM(2020)605 final.
105

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Furthermore, even where legislative action would not be considered appropriate, the integrityof the Schengen area and the fundamental right to free movement of all EU citizens require a
coherent approach across the entire Schengen area, including on restrictions for non-essential
travel to the EU at the external borders.
In particular, the objective of establishing a contingency planning for Schengen - including
specific measures at internal and external borders - as well as limiting the number of cases of
temporary reintroduction of border checks at internal borders as a truly last resort measure to
the real minimum, cannot be sufficiently achieved by the Member States acting alone, and canbe better achieved at the level of the Union. The Union may therefore consider taking
measures to address the problems identified in this impact assessment, in accordance with theprinciple of subsidiarity.
3.3.

Subsidiarity: Added value of EU action

EU action in response to the identified problems is expected to bring added value for theentire Schengen area, and therefore to its citizens, by reinforcing the overall security and trust
among the Member States as the prerequisites of the area without controls at internal borders,
as well as the ability of persons and goods to move freely across borders.
Such action is also expected to have tangible effects on cross-border regions which are much
more advanced in terms of integration and rely on checks at internal borders being absent. As
mentioned above, with 150 million persons living in cross-border regions, the measures
adopted on the basis of this impact assessment are likely to have an added value in particular
for this population, by protecting them from arbitrary reintroductions of border checks atinternal borders as a first aid measure.
Thus, even under the assumption that the Member States are in the best position to determine
the most appropriate measures to address an identified threat to internal security or public
policy, the interests of these regions require a guarantee that the measures that have thestrongest impact on their daily operation truly are a last resort measure.
4.

OBJECTIVES: WHAT IS TO BE ACHIEVED?

4.1.

General objectives

The general objective of any intervention is to ensure that persons and goods can movefreely without unjustified or disproportionate hurdles within the Schengen area. To thisend, identified problems, i.e. border checks at internal borders which become an unjustified
hurdle to these movements (2.1.1) and non-uniform application of travel restrictions at theexternal borders undermining the trust and impacting the credibility vis-a-vis third countries(2.1.2), need to be addressed [Figure 2Error! Reference source not found. presents the logic
of intervention to attain this objective].

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Figure 2 - Intervention logic

4.2.

Specific objectives

The identified problems concerning i) the border checks at internal borders which are longlasting and applied against abstract threats or used as a ‘first aid measure’ (2.1.1), and ii)
discrepancies in the application of travel restrictions at the external borders (2.1.2) call forsolutions that would have the following specific objectives:
1.2.8. Creation of a contingency planning for Schengen
The objective is to create a procedure to be applied specifically in response to a crisis
situation affecting all or several Member States at the same time. Such a procedure should
allow for discussing the identified threat(s) at EU level and, in consultation with the otherMember States, selecting the most appropriate measures to address them. The contingency
planning should fully recognise the role of compensatory measures which should be
encouraged as much as possible and privileged over border checks at internal borders.
A contingency planning for Schengen should first and foremost ensure a better coordination
among Member States in a situation of a common threat to streamline the measures taken andprovide an approach as uniform as possible, in order to increase the predictability for citizens.
It should also reflect that “[t]ravel measures that significantly interfere with internationaltraffic may […] be justified at the beginning of an outbreak [of a pandemic], as they may
allow countries to gain time, even if only a few days, to rapidly implement effective
preparedness measures”, but “must be based on a careful risk assessment, be proportionate

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to the public health risk, be short in duration, and be reconsidered regularly as the situation
evolves.”107
1.2.9. Application of mitigating measures and specific safeguards for crossborder regions
This objective refers to the need for a quasi-automated application of safeguards, should thetemporary reintroduction of border checks at internal borders be inevitable. It complements
the objective concerning the creation of the contingency planning for Schengen. It should
ensure that the impacts of border checks reintroduced at several border sections on thefunctioning of cross-border regions and, thus, on the Internal Market are limited. The
mitigating measures refer in particular to the guidelines and recommendations developed in2020 in relation to the COVID-19 crisis.
More concretely, once this objective is achieved, the good practices identified in the DGREGIO study referred to above for cross-border entities such as twin cities and cross-borderworkers should be used more widely (for examples see Annex 9).
1.2.10. Uniform application of measures at the external borders in particular incase of a threat to public healthThis objective refers to the need for a uniform application of extraordinary measures at theexternal borders where such measures are adopted in response to a threat to public health. To
recall, in line with Recital 6 of the Schengen Borders Code, ‘Border control 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 internal border control. Border control should help to combat
illegal immigration and trafficking in human beings and to prevent any threat to the Member
States’ internal security, public policy, public health and international relations.’ Therefore,
any differences in the application of such measures at the external borders may jeopardise thetrust on which the Schengen area relies. It also includes the need to ensure credibility vis-à-vis
third countries and predictability of such measures for travel.
1.2.11. Increased use of compensatory measures to address the identified threats
The fourth specific objective is to ensure a high level of security within the Schengen area in a
proportionate manner. To this end, less invasive measures than border checks at internalborders, such as police checks and the use of new technologies, should be privileged. Police
checks in the border areas can be carried out also randomly as long as they do not becomeborder checks in disguise.
1.2.12. Lifting the long-lasting border checks at internal borders
The fifth specific objective of any intervention would be to make the Member Statesconcerned (see Table 1 above) lift border checks at their internal borders as soon as possible.

107

WHO, “Updated WHO recommendations for international traffic in relation to COVID-19 outbreak”, 29
February 2020: https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-internationaltraffic-in-relation-to-covid-19-outbreak.

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The costs of non-Schengen as well as the case studies mentioned earlier concerning theimpact of border checks on cross-border regions demonstrate that the objective of restoring
Schengen as the area without checks at internal borders remains valid and important for many
EU citizens and residents.
5.

WHAT ARE THE AVAILABLE POLICY OPTIONS?

This Impact Assessment analyses the key policy options, including a baseline scenario, toaddress the problems identified in section 2 and match the objectives set out in section 4.
The policy options have been developed taking into account requests and recommendations
from stakeholders, the experience with the negotiations of the 2017 proposal to amend the
Schengen Borders Code (see Annex 2 and Annex 5), the new experiences from the COVID19 crisis and the evidence available concerning the impacts on the cross-border regions.
According to the DG REGIO Eurobarometer 2020108, 58% of Europeans think more influenceof regional and local authorities will have a positive impact on the EU’s ability to solve
problems. The policy options have also been elaborated while bearing in mind the difficulty toquantify the impact of internal border controls as explained in Section 2.1.3.
The negotiations of the 2017 proposal have shown that Member States are unlikely to accept
modifications of the existing time-limits for unilaterally reintroduced border controls but
rather view the reintroduction of such controls as their sovereign right. Additionally, the
COVID-19 crisis has demonstrated that threats to public health can require uniform rules
concerning travel restrictions for non-essential travel to the European Union by third country
nationals and that non-binding ad hoc measures cannot assure such a result.
As an alternative to the baseline scenario three comprehensive approaches addressing all
identified problems can be envisaged:
Option 1 proposes to adopt only soft law measures, together with the Schengen Strategy (softlaw measures).
Option 2 consists in a targeted amendment of the Schengen Borders Code, accompanied bysome soft law measures (mixed option based on the targeted amendment of the Schengen
Borders Code and soft law measures).
Option 3 is more ambitious in terms of amending the existing rules. It presupposes that thedecision on any measures necessary to address the identified threats would be taken at the EU
level, either by requiring a prior decision of one of the EU institutions approving thereintroduction of border checks at internal borders or by simply removing the possibility toreintroduce border checks at internal borders109 from the legislation, and thus imposing theuse of compensatory measures (mixed option 2 based on a more fundamental amendment of
the Schengen Borders Code).
5.1.

What is the baseline from which options are assessed?

The baseline is a ‘no policy change’ scenario. The response to crisis situations such as apandemic would depend on Member States and their willingness to cooperate with each other,based on the current rules in the Schengen Borders Code and other relevant EU legislation.
108

https://cor.europa.eu/en/our-work/Pages/EURegionalBarometer-2020.aspx.
See Article 2(2) of the Convention Implementing 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, Official Journal L 239, 22/09/2000.
109

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This means that the know-how developed over the last year thanks to COVID-19 could be lost
and that the EU would be exposed to a comparable lack of coordination in case of any future
pandemic or any other Schengen-wide threat.
Without any action, the long-lasting border checks at some internal borders are very likely tocontinue, as experience shows that Member States are not considering lifting them. In
particular, neither the action plan to lift these controls, contained in the 2016 Communication‘Back to Schengen – a Roadmap’110, nor the 2017 legislative proposal to amend the Schengen
Borders Code111 or the Recommendations of the Commission relevant for this topic
succeeded in this respect.
As mentioned in the previous sections, the data concerning migration and terrorist attacks aswell as the role of border checks in containing COVID-19 demonstrate that border checks areeither not justified anymore (in view of the situation at the external borders as concerns the
migratory pressure) or are not the most efficient in addressing the identified threats (terrorism,
pandemic).
While the Commission has the possibility to issue an opinion on the necessity/proportionalityof border checks at internal borders and to launch infringement proceedings, the problem thatborder checks are being used as a universal remedy for any security or other type of threat
would remain. Moreover, given the number of Member States concerned and the complex
implications involved, launching infringement procedures without any accompanying actionneeds to be measured against the results expected and the complex implications involved,
including in terms of the necessity to continue building trust between Member States and with
the European Commission.
5.2.

Description of the policy options

The identified problems concerning i) the border checks at internal borders which are longlasting and applied against abstract threats or used as a ‘first aid’ measure (2.1.1), and ii) the
non-uniform application of travel restrictions at the external borders (2.1.2) can be addressed
through three lines of action.
Option 1: Soft law
This option proposes soft law measures drawing on the lessons learnt from the
COVID-19 crisis. It also further develops the soft law tools to encourage the use ofcompensatory measures instead of border checks at internal borders. As such it follows
the earlier approach of the Commission in the 2016 Communication ‘Back to Schengen– a Roadmap’112 and the Recommendation on proportionate police checks and police
cooperation in the Schengen area. This option also entails soft law measures on a better
coordination of measures at the external borders in the situation of crisis. As such, it
aspires to achieving all the identified objectives (see Table 4 below).
The specific objectives would be achieved through the upcoming Communication on the
future of Schengen (the so-called Schengen Strategy) and, possibly, updates of therelevant Recommendations (in particular of the 2017 Recommendation on proportionate
police checks).

110

COM(2016)120, for full reference see Annex 16.
COM(2017)571, for the text of the proposal see Annex 17.
112
COM(2016)120, for full reference see Annex 16.
111

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Under this option the ‘contingency planning for Schengen’ (ref. objective 4.2.1) would buildon the existing legal framework and the know-how developed in 2020 and 2021 with regard
to COVID-19. In order to give more predictability to stakeholders, the Schengen Strategy
would recall the rules and principles that should apply in crisis situations in the Schengenarea: the reintroduction of border checks only as a last resort measures, the possibilities
concerning the use and intensification of use of compensatory measures within the territory,
the obligation to consult other Member States as regards the reintroduction of border checks
at internal borders and of loyal cooperation between the Member States as regards borderchecks in general. It would also provide an overview of the guidelines and recommendations
adopted in response to COVID-19 as a baseline for the mitigating measures that should
apply when reintroducing border checks, until they are updated or new guidelines andrecommendations are adopted on an ad hoc basis (ref. objective 4.2.2). This element isparticularly relevant for bringing more predictability to the industry particularly affected by
the application of new measures at or in the area of the internal borders. In addition, theStrategy would recommend specific minimum measures to the benefit of the border regions
where Member States reintroduce border controls at the internal borders.
As regards a better coordination of measures at the external borders (ref. objective 4.2.3)
in crisis situations, the Strategy could identify, based on the experience related to COVID-19,
the type of measures that can be taken with a view to the external borders, define thecategories of essential travel to the EU and stress the importance of a uniform application of
any such measures in order to protect the integrity of the Schengen area. It could also look
into the guidelines for the type of evidence to be presented during border checks todemonstrate the essential character of the travel and deal with questions related to the transitof passengers. In this respect, the role of the IPCR could be enshrined. The IPCR would be
consulted by the Commission. In case of new a pandemic, the IPCR could serve as a forum
for Member States to coordinate the measures at the EU external borders.
Finally, as regards the objective of lifting the long-lasting border checks and better use of
the compensatory measures (objectives 4.2.4 and 4.2.5) in the future, the Schengen
Strategy could, on the one hand, take a stance on the necessity and proportionality of checks
at internal borders by those Member States that have been prolonging border checks atinternal borders on the same grounds for a certain period (e.g. at least 1]year), and on theother hand, could complement the 2017 Recommendation on proportionate police checks andpolice cooperation in the Schengen area, by addressing some frequently asked questions from
the Member States as regards the use of police checks and new technologies in the borderareas.
Table 4 – Mapping of objectives and measures under Option 1
Objectives

Measures4.2.1 Creation of a The Schengen Strategy recalls the existing rules
contingency planning concerning the reintroduction of border checks andfor Schengencalls for the use of compensatory measures insteadof border checks at internal borders as well as forminimum mitigating measures, in particular for theborder regions.
PersonsEN

4.2.2 Application of The Schengen Strategy provides an overview ofand mitigating measures relevant guidelines/recommendations adopted in38

ENgoods can movefreely [without
unjustified
ordisproportionate
limitations]
withinthe
Schengen areaandspecific response to COVID-19. It also recalls the need ofsafeguards for cross- taking due account of the interests of cross-borderborder regions
regions when deciding on the application of specificmeasures.
4.2.3
Uniform
applicationofmeasures at theexternal borders

The Schengen Strategy identifies the criteria to betaken into account by the EU and Member States
when deciding on travel restrictions for nonessential travel of third country nationals andderogations therefrom.
It provides also guidelines for the type of evidence
that could be presented during border checks todemonstrate the essential character of the travel.
The IPCR is consulted and involved all along theimplementation of the Strategy.

4.2.4 Increased use The 2017 Recommendation on proportionate policeof the compensatory checks and police cooperation in the Schengen area,
measures to address is further developed in the Schengen Strategy tothe identified threats address some frequently asked questions from theMember States as regards the use of police checks
and new technologies in the border areas.
Lifting the The Schengen Strategy takes a stance on thelong-lasting border necessity and proportionality of checks at internal
checks at internal borders exceeding a certain period (e.g. > 1 year).
borders

4.2.5

Overall, this option would be a continuation of the current policy which is based on ad hoc
reactions to crisis situations, while it would ensure that the know-how developed during
COVID-19 is preserved and used, where appropriate, in the future. In this sense, it would
respond to the calls from the stakeholders to ensure more predictability, but only partially. At
the same time, as regards checks at internal borders this option would give another chance tomake use of the existing tools, while further developing the existing compensatory measuresin the form of the soft law. As such, it would respond to the call of some Member States to
use the available tools to the fullest potential, before creating new tools113. However, thisoption is not likely to satisfy the other Member States which are directly affected by the longlasting border checks at internal borders. Taking a clear position on the necessity andproportionality of the persisting border checks at internal borders in the Schengen Strategy
would be also welcomed by the European Parliament that has been encouraging theCommission to take steps against the Member States abusing the current rules, although theParliament is likely to expect more far-reaching action. Being addressed to the Member
States, the proposed measures would not create any obligations for the industry or citizens,

113[FI input: before creating new tools, we should ensure that we use the current, available tools, to their fullest
potential.]

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but could generate some benefits for them if Member States decided to adhere to theguidance.
Option 2: Mixed option (targeted amendment of the Schengen Borders Code combinedwith soft law)
This option addresses the identified shortcomings as regards the reintroduction of borderchecks at internal borders as well as the lack of a uniform application of special
measures at the external borders, such as travel restrictions for non-essential travel to the
EU by third country nationals. As such it addresses the criticism concerning the current
situation from the citizens, the European Parliament, as well as Member Statescomplaining about the long-lasting checks at internal borders. It would also respond tothe call from academia114. This option is expected to allow for ensuring that persons canmove freely in the Schengen area without unnecessary hurdles, thanks to the limitationof the instances where border checks at internal borders are reintroduced. A targeted
amendment of the Schengen Borders Code would concern:i) a new procedure of ‘contingency planning for Schengen’, applicable in case of any
serious threat to several or all Member States;ii) creating the possibility of adopting restrictions on non-essential travel into the EU for
third country nationals in a situation of a serious threat, in particular to the public health,at the external borders;iii) developing the concept of ‘last resort measure’ in the context of a temporary
reintroduction of border checks at internal borders more in detail, compared to thecurrent rules, including by clarifying better what measures are considered as not
equivalent to border checks and therefore admissible below the threshold of Articles 25
to 29 Schengen Borders Code, and the conditions of use of new technologies at internalborders and their vicinity;iv) limiting the side effects of any border checks by providing for mitigating measures tobe applied where appropriate as part of the obligation to ensure proportionality, and inparticular as concerns border regions;v) introducing an obligation to prepare a risk assessment in the case of border checks atinternal borders are reintroduced, andvi) providing the Commission with better tools to keep an overview of the decisionmaking process in the Member States and the actual use of reintroduced border checks(modified rules on notifications and reports on the reintroduction of border checks).
Soft law measures within the framework of the Schengen Strategy could complement
these new, more specific requirements concerning the proportionality of border checks
by establishing a proper catalogue of mitigating measures to be applied in the situationof systematic checks reintroduced at internal borders by several Member States. Specificmeasures should be recommended in order to limit the impacts on twin cities and borderregions (e.g. to set up border control not within the cities but on their margins and to114

Recommendations of the Meijers Committee (standing committee of experts on international immigration,
refugee and criminal law) shared with the Commission and attached in Annex 4.

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ensure that cross-border workers can continue to commute to their place of employment
without excessive administrative burden).
This option implies legislative changes in the Schengen Borders Code to make contingency
planning for Schengen more predictable and stable. The contingency planning (ref.
objective 4.2.1) would consist of a new procedure allowing for a reintroduction of borderchecks at internal borders in response to any serious threat to internal security or public policy(including public health as in 2020) affecting several or all Member States at the sametime (unlike the 2017 proposal when the Commission proposed the possibility to prolong
border checks to 1 year by an unilateral decision of a Member State or 2 years by a decisionof the Council, under the condition that the Member State concerned is confronted with apersisting threat and has adopted relevant commensurate measures to address this threat).
While Member States would keep the right to reintroduce border checks at their internalborders, under this option any prolongation of such checks would require a decision by one of
the EU institutions in order to ensure a coordinated approach once the immediate need has
been taken care of. The overall duration of such border checks should, however, be limited intime.
The new procedure would be supported by additional safeguards concerning the use of
mitigating measures (ref. objective 4.2.2), whenever the border checks are reintroduced byseveral Member States at the same time. For the sake of transparency, the guidelines andrecommendations adopted in the course of 2020 in relation to COVID-19 could be gathered in
the Practical Handbook for Border Guards115, in order to become a natural point of reference
for border guards in a crisis situation. At the same time, the Schengen Borders Code could
point (in the criteria for reintroduction of border checks) to the specific need to protect theborder regions. These regions could e.g. be defined based on the approach adopted in the local
border traffic Regulation 1931/2006 (for more information see Annex 15).
Finally, contingency planning would be complemented by a new provision in the case where
the European Centre for Disease Prevention and Control (“ECDC”) detects the existence in
one or more third countries of an [infectious] disease with epidemic potential. The provision
would allow explicitly the Council to adopt a regulation, based on a proposal by theCommission, which would provide for a temporary travel restriction on non-essential
travel into the EU for third country nationals residing in one or more third countries andexemptions from such restrictions. (ref. objective 4.2.3). The provision would define thecategories of essential functions pursuant to which travellers who fulfil them would beallowed to get into the EU. In addition, the provision would specify that the Regulation would(i) identify the geographical areas or third countries from which travel would be subject torestrictions or exemptions of restrictions, (ii) lay down the specificities of the travel
restrictions and possible exemptions, (iii) possibly define other categories of essentialfunctions, and (iv) conditions applicable to travels into the EU, like e.g. testing or quarantine.
The Schengen Borders Code would also be amended in view of the objectives 4.2.4 and4.2.5. This amendment would have as an objective to provide the Commission with better
tools to assess the decisions of Member States to reintroduce border checks. It is in line withthe finding of the public consultation, where the great majority of participants agreed or

115

EN

Annex to the Commission Recommendation C(2019)7131.

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tended to agree on the importance of regular and comprehensive monitoring for the
implementation of common rules and standards across the Schengen area116. To that end, theprovisions on the notifications and reporting obligation would also be modified, to ensure that
the Commission and other Member States affected by the measures have sufficient
information on the situation at the internal borders (not only post factum, once border checks
are lifted, as it is the case at present). The Roadmap accompanying the Schengen Strategy andindicating the steps to be taken in order to achieve the objective of the Strategy of making
Schengen stronger and more resilient, could include the milestones for lifting the current
border checks at internal borders.
The Code would also be amended with a view to establishing a balance between the use ofborder checks and that of compensatory measures at internal borders. To that end, theamendment should bring more clarity to the concept that border control at internal borders
shall only be reintroduced as a ‘last resort measure’. In this context, the intensification ofpolice checks supported by new technologies would be explicitly mentioned as a necessary
element of the risk assessment to demonstrate that border checks are indeed the last resort
measure. Moreover, the catalogue of measures that can be used in the areas of internal borders
without being considered as equivalent to border checks would be reviewed, to address somerecurring questions concerning police checks and to reflect the upcoming developments, inparticular as regards the use of advanced passenger information (API).
This proposal would replace the one tabled by the Commission in 2017, which did not receive
sufficient support in particular in the Council. That proposal, in particular provided for a
specific procedure (decision by the Council) where border checks exceeded a duration of 1
year.
Taking into account the discussions in 2017 on that proposal, the new proposal would moveaway from a general reform of the rules governing the reintroduction of border checks at theinternal borders to a more targeted approach. Thus, the contingency planning will address
specifically the situation of a threat affecting several Member States or even the entire
Schengen area. For all other cases of reintroduction of border checks, the new proposal will
limit itself to providing more clarity as to compensatory measures and taking into accountnew developments in this area, in particular the 2017 Commission Recommendation on
proportionate police checks and police cooperation and newly developed technologies. A
more detailed description of the changes that were proposed in 2017 is contained in Annex
17.
Table 5 – Mapping of objectives and measures under Option 2
Objectives
4.2.1 Creationof contingency
planning
for
Schengen

116

EN

Measures
The SBC is amended by adding a new procedure of‘contingency planning for Schengen’ which applies
when several or all Member States are confronted withthe same kind of threat. The Member States may
reintroduce border checks unilaterally but must seek theagreement of one of the EU institutions for prolongation.

Annex 2, p. 13.

42

ENPersons
andgoods can movefreely [without
unjustified
ordisproportionate
limitations]
withinthe
Schengen area

4.2.2
Application of
mitigating
measures andspecificsafeguards forcross-borderregions

The concept of proportionality of border checks in the
SBC explicitly refers to the mitigating measures;

4.2.3 Responsetoseriousthreats,
inparticular to apandemic
includesalso
uniform
application of
measures at theexternal borders

The SBC is amended to provide for a possibility of aRegulation by the Council upon a proposal by theCommission on restrictions on non-essential travel into
the EU in particular in the situation of a serious threat tothe public health at the external borders.

4.2.4. Increased
use
of
the
compensatory
measurestoaddress
theidentified
threats

The following amendments in the SBC are proposed:

The Schengen Handbook contains a catalogue of
mitigating measures.
The specific interests of cross-border regions are
explicitly mentioned among the criteria for the
temporary reintroduction of border control at internalborders (Article 26).

The concept of ‘last resort measure’ is developed [toreinforce the need to use less invasive measures before
reintroducing border checks at internal borders];
All border checks at internal borders must be
accompanied by a risk assessment; The non-exhaustive
list of authorised measures not equivalent to borderchecks is reviewed;
The conditions for the use of new technologies atinternal borders and in the areas of internal borders are
better explained.

4.2.5 Lifting the A Roadmap accompanying the Schengen Strategy
long-lasting
includes milestones for lifting the long-lasting checks atborder checks at internal borders;internal borders
The SBC is amended to provide to the Commission
better tools to obtain an overview over the decisionmaking process in the Member States and the actual useof reintroduced border checks to assess their necessityand proportionality.

Overall, this option would make an important step towards a contingency planning for
Schengen by creating a new procedure for the reintroduction of border checks in crisis
situations and providing a stronger legal basis for the use of mitigating measures and travel
restrictions at the external borders. In this sense, this option provides for more stability andpredictability to citizens and industry with the new built-in safeguards that the impact on thefunctioning of Schengen of any measures adopted to address the crisis situation will belimited. Furthermore, those citizens and regions that have been most affected because of their

EN

43

EN

location will benefit from guarantees that their specific needs will be protected in case of afuture reintroduction of internal border checks.
The expected better use of compensatory measures should assure more flexibility and bettertaking into account the local circumstances, thus limiting the impact on citizens. Thisdevelopment would be welcomed by those Member States which are exposed to the longlasting border checks at the internal borders as well as by the European Parliament, if pairedwith increased monitoring that these measures are not discriminatory and respect fundamental
rights. The Roadmap accompanying the Schengen Strategy would also be an important tool torestore the stability in the Schengen area. However, some Member States, in particular thosecarrying out border checks at their internal borders for years, can be expected to be critical
about the proposed measures. This option would also respond to the call for changes comingfrom academia (see in this respect the Recommendations of the Meijers Committee - standing
committee of experts on international immigration, refugee and criminal law - shared with theCommission and attached in Annex 4).
The proposed modifications would primarily address the Member States, including border
guard authorities. The obligations for the industry will depend on the outcome of the ongoing
discussion on the future of the API Directive which is outside the scope of this initiative.
Option 3: Mixed option 2 (more fundamental change of the SBC, combined with soft law
elements)
This option sees the borderless Schengen area as one integral space that must not be
fragmented by decisions of individual Member States and in view of that proposes astrictly EU level approach where any decision on reintroduction of border checks atinternal borders requires the prior approval of one of the EU institutions or removes thepossibility of a reintroduction of border checks at internal borders altogether.
Under this option, the contingency planning for Schengen would go much beyond
the framework currently imposed by the Schengen Borders Code with the rules
applicable at the internal/external borders. The discussion and decision at EU level on
the most appropriate measures (whatever their nature) to address any identified threats
affecting some or all EU Member States would remove the current discretion of theMember States as regards the unilateral reintroduction of border checks at internalborders. As a result, a new approach to compensatory measures would need to be
developed to ensure that their application does not lead to border checks in disguise.
As regards the application of measures at the external borders in case of public healththreats, the proposed remedies would not differ from option 2 (new restrictions on nonessential travel into the EU applicable in the situation of threat to public health).
The current paradigm of measures at internal/external borders taken in response to crisis
situations would need to change if a reintroduction of border checks was not an option
anymore. This option is based on the assumption that the relations developed in the EU basedon the freedom of movement and the Internal Market are so complex that reintroducing
border checks at internal borders does not make sense anymore given that, after all, it can
only help pushing the identified problem to the neighbouring Member States (and in principle
only for a limited period of time). Moreover, reintroducing border checks - as checks in fixedlocations - does not seem sufficiently flexible and efficient.

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Establishing a strictly European approach to response to threats to internal security or public
policy, by bringing any decision on reintroducing border checks at internal borders to the EU
level or simply removing the possibility to temporarily reintroduce border checks at internalborders from the Schengen Borders Code, would require taking a new approach to Schengencontingency including the mitigating measures (ref. objectives 4.2.1 and 4.2.2). Under thisoption, the contingency planning for Schengen would aim at identifying the best approach ineach crisis situation, irrespectively of whether it affects one or more Member States. The
decision-making process would be time-framed. In the absence of the possibility to(unilaterally) reintroduce border checks at internal borders, the Member States would need tochoose from different measures related to different policy areas (travel restrictions,
quarantine, intensified police checks, etc.). If provided at all, the reintroduction of controls atinternal borders would be subject to a truly European procedure. As a general rule, such
reintroductions would be based on a decision proposed and adopted by the Commission as animplementing act following the request by a Member State.
The above modifications would be accompanied by a new Schengen tool allowing to restrict
non-essential travel into the EU in case of a serious threat to public health, applicable in an
uniform manner at all external borders, as presented in option 2 (ref. objective 4.2.3).
The prohibition of border checks at internal borders, even in a situation of a serious threat tointernal security or public policy as allowed under current rules, would automatically allow
for achieving the objectives 4.2.4 and 4.2.5.
Table 6 – Mapping of objectives and measures under Option 3
Objectives

Measures4.2.1 Creation of The SBC is amended to ensure that remedies tocontingency planning threats affecting some or all EU Member States are
discussed at the EU level and a decision is taken on
for Schengenthe most appropriate measures (whatever theirnature) to address the identified threats.
4.2.2 Application of
mitigating measures
Persons
and andspecific
goods can movesafeguards for crossfreely [without border regions
unjustified
ordisproportionate
4.2.3 Response to thelimitations]pandemics includes
withinthe also
uniform
Schengen area
applicationof

The Schengen Strategy encourages Member States
to set up an exchange platform to ensure that thecompensatory measures adopted by the Member
States do not become equivalent to border checks atinternal borders.

4.2.4 Increased useofcompensatory
measures to address
the identified threats

Following the amendment of the SBC prohibiting a(unilateral) reintroduction of border checks orrequiring approval of one of the EU institutions forany reintroduction of border checks at internalborders, compensatory measures become the only
possibility at least until the decision of theinstitution.

The SBC is amended to provide for a possibility ofa Council Regulation upon a proposal by theCommission on restrictions on non-essential travel
into the EU in the situation of a serious threat to themeasures at the public health at the external borders (as under
external borders
option 2).

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Lifting the The SBC is amended to prohibit border checks at
long- lasting border internal borders or to make these checks subject to achecks at internal prior decision of one of the EU institutions.
borders

4.2.5

Overall, this option is the most ambitious and the one that reflects best the idea of Schengen.
However, the persistent use of border checks and the failure of the negotiations on the 2017
proposal of the amendment clearly demonstrate that the EU is not ready for such a radical
step. In this sense this option risks leading to firm opposition from many Member States as it
disregards the direct link between the possibility to reintroduce border checks at internalborders and national sovereignty.
This option also suffers from the limitations resulting from the legal basis of the Schengen
Borders Code, which concerns measures at the borders and only refers to other measuresapplicable in border areas to ensure that these are not equivalent to border checks. This meansthat the application of other measures than border checks cannot be directly regulated in the
Schengen Borders Code. The same applies to additional safeguards to avoid that the absolute
ban on border checks at internal borders is circumvented by Member States by a discretionary
use of compensatory measures, which would lead to border checks in disguise. Also theexchange of information on the actual use of compensatory measures would depend on thegood will of the Member States.
In this sense, the solutions proposed under this option seem to be premature and the identified
objectives may have better chances to be achieved by means of developing the alternatives toborder checks as such, instead of prohibiting border checks.
This option also does not necessarily remove the unpredictability for citizens, related to theuse of measures in relation to the crossing of the border, as the full overview of the measuresother than border checks cannot be guaranteed under the Schengen Borders Code.
This option could satisfy part of the industry (airports), while the carriers (e.g. Flexibus)
might be still dissatisfied by the time losses generated by unpredictable and possibly intensive
checks.
Table 7 – Policy options and key measures
ProblemEN

Objective

Option 1

Option 2

Option 3

4.2.1 Creation of Schengencontingency planning Strategy
for Schengen

Schengen
SchengenBorders Code Borders
amendment
Codeamendment

Border checks at 4.2.2 Application ofinternal
borders mitigating measures
which are longSchengenlasting and applied
Strategyagainstabstract
threats or used as a

Schengen
SchengenBorders Code Borders
amendment;
Codeamendment
SchengenHandbook46

EN‘first aid measure’(and as such areoften
disproportionate andinadequatetoaddress the threats
they are supposed totackle) become an
unjustified hurdle for
persons and goods to
move
in
the
Schengen area

4.2.4 Increased useofcompensatory
measures to address Recommendati
the identified threats on

Lifting the Schengen
long-lasting border Strategy
checks at internalborders

4.2.5

Schengen
SchengenBorders Code Borders
amendment
Codeamendment

Schengen
SchengenBorders Code Borders
amendment
Codeamendment
Roadmap/
SchengenStrategy

Non-uniform
application of travel
restrictions at theexternal
borders,
where
necessary,
undermining
thetrust and putting theoverall functioningof Schengen at risk

5.3.

4.2.3 Response to apandemic includes
alsoauniform Schengenapplicationof Strategy
measures at theexternal borders

Schengen
SchengenBorders Code Borders
amendment
Codeamendment

Options discarded at an early stage

Following the consultation of stakeholders, the Commission discarded the option of
expanding carriers’ liability with regard to the intra-Schengen connections as a measurealternative to border checks at internal borders. Carriers’ liability has been set out in Article
26 of the Convention Implementing the Schengen Agreement117 (CISA) and further
developed in Directive 2001/51/EC118. It imposes on carriers certain obligations whentransporting passengers from outside the EU into the Schengen area. In particular, it obliges
them to ensure that all persons brought to the EU are in possession of relevant documentsallowing for entry. It also obliges Member States to impose penalties on carriers who do notcomply with this obligation. In recent years, some Member States imposed an obligation on
carriers in national law to verify the documents of all passengers (for non-commercial
reasons). These obligations have been part of the national measures aimed at addressing thethreats to internal security or public policy, which at the same time justified the reintroductionof border checks at internal borders.

117
118

EN

OJ L 239, 22.9.2000, p.19. For full reference see Annex 16.
Council Directive 2001/51/EC (OJ L 187, 10.7.2001). For full reference see Annex 16.

47

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The decision not to look at expanding the liability of carriers has been taken in view of
proportionality considerations: i) carriers’ liability is linked with the subsequent border checks
by the border guards. Therefore, the verification of the compliance with any new rules
concerning carriers’ liability at internal borders would require developing a specific system ofverification; ii) the checks of documents carried out by carriers would be very limited(presence of documents/evident signs of counterfeit etc.) but would still require significant
investments from the carriers119.
6.

WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?
1.3.

Economic and social impacts

None of the options is expected to generate direct costs for the economy or the citizens
compared to the baseline scenario because all the options aim at restoring the Schengen area
as the area without checks at internal borders.
The analysis of the economic benefits of the proposed options may only rely on theassessment of the direct benefits related to how each of the options could contribute tobringing back the normality in the Schengen area by lifting the current border checks andpreventing the reintroduction of border checks at internal borders in the future.
As regards the economic impacts of the considered measures at the external borders, someMember States particularly relying on foreign tourists may perceive them as potentiallyaffecting their economy. However, given the overall positive impact of such measures on trust
among the Member States, these potential costs would be counterbalanced by the benefits for
the Schengen area (as other Member States could not justify the reintroduction of borderchecks at internal borders and/or travel bans within the Schengen area which equally affectthe tourism industry of these Member States). In view of that, the assessment of the economic
impact of the measures considered to address problem 2 (travel restrictions for non-essential
travel to the EU) will depend on their effectiveness in preventing the reintroductions of borderchecks at internal borders due to a divergent application of the measures taken at the externalborders.
The soft law measures considered under Option 1 are not very likely to limit the duration ofborder checks and therefore the economic benefits of Option 1 would be rather limited. The
measures proposed under this option are not likely to impact ‘the national approach’ of theMember States as regards taking the decision on reintroduction of border checks at internalborders in the future as explained in section 2.2.4. As the reintroduced border checks inparticular affects cross-border regions, the risk of using border checks as a first aid measure
could continue affecting the economic interests of these regions. Furthermore, the risk of a
non-uniform application of travel restrictions at the external borders justifying possibly thereintroduction of border checks at internal borders could not be sufficiently prevented onlywith soft law measures (such as criteria for travel restrictions and guidelines for evidence in
the Schengen Strategy) as the current experience with the implementation of Council
Recommendation 2020/912 shows.
Option 2, with the new mechanism of contingency planning, bringing the response to crisis
situations affecting several or all Member States to the EU level and reinforcing the use ofcompensatory measures, is likely to provide better and more reliable framework for exercising
basic freedoms by preventing long-lasting border checks at internal borders in the future. As

119

EN

For instance, written contributions of Hungary and Eurostar.

48

ENsuch, this option could be instrumental in limiting the negative economic impact of borderchecks at internal borders and thus the economic benefits of this option could be significant.
Also the possibility of adopting an EU-wide travel restriction for non-essential travelapplicable at the external borders in the situation of a public health threat could contribute tothis objective by eliminating a likely ground for the reintroduction of border checks at internalborders.
Option 3, bringing any decision on reintroduction of border checks at internal borders to the
EU level or abolishing border checks as such, may appear as having the biggest positive
economic impact for the future, also relieving cross-border regions from carrying the bulk of aburden of measures that are meant to benefit the entire Member State. However, it also risks
having the most unwanted side effects, as the non-transparent use of compensatory measures
could lead to border checks in disguise. Nevertheless, the possibility to adopt EU–wide travel
restrictions applicable at the external border in the event of a public health crisis could limit
the need for compensatory measures and thus, also the risk of their discretionary use by theMember States.
Also as regards the social impacts, this analysis is focused on the benefits that each of theoptions can bring in terms of lifting border checks at internal borders and restoring trust
between the Member States. From this perspective, the situation in the cross-border regions isof particular relevance. As underlined in the inception impact assessment and mentioned in
section 2.1.3, there are 1.7 million workers in the EU crossing a border every day to go totheir jobs and long waiting times at the border might discourage people from looking forcross-border opportunities on the labour market, reducing the pool of potential workers. The
social benefits from the proposed measures would extend to EU citizens and all other persons
legally residing in the EU. Moreover, the impact of the proposed measures on the entire EU
population benefiting from the area without checks at internal borders would be positive,
given that they diminish the risk of reintroduction of border checks.
Option 1, with no real contingency planning and a simple overview of theguidelines/recommendations building solely on the mitigating measures adopted in relation to
COVID-19, is not likely to reduce the risk of reintroductions of border checks and as such is
not likely to have any significant positive social impact.
Option 2, with the contingency planning for Schengen and the reinforced concepts of the ‘last
resort measure’, should limit the use of border checks at internal borders. This option can be
expected to yield more positive social impacts also due to the further development of theconcept of ‘proportionality’ and a proper catalogue of mitigating measures to be included in
the Schengen Handbook, which would guarantee certain minimum safeguards whenever the
reintroduction of border checks is truly necessary and justified.
Finally, bringing to the EU level any decision on the use of relevant measures, including any
instance of use of border checks at internal borders, as provided for in Option 3, could makethe most visible difference, in particular for cross-border regions, provided that relevant
safeguards could be developed to ensure that compensatory measures which the Member
States would have to rely on instead do not become equivalent to border checks at internalborders. At the same time, bringing such decisions to the EU level or even abolishing thepossibility of border checks at internal borders could significantly increase the pressure on the
EU. As certain phenomena (secondary movements, cross-border criminality or even terrorist
threats) cannot be eradicated completely, the EU might become an easy target for criticism
driven by national debates.

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6.2.

Impacts on fundamental rights

All three considered options attempt to address problems which have an impact on thefollowing rights: i) the right to family life of persons residing legally in the EU, ii) the right towork, to exercise the right of establishment and to provide services in any Member State, iii)
the right to move and reside freely within the territory of the Member States, iv) the right toprivacy and protection of personal data.
All three options considered recognise the possibility to make the exercise of the rights
mentioned above more difficult, either by reintroducing border checks at internal borders or
by using compensatory measures such as police checks in border areas. However, these
possibilities already exist and are recognised as justified despite their impact on fundamental
rights.
Thus, the impact of the specific options on fundamental rights may be measured according to
the duration of limitations to the fundamental rights likely under each option.
From this perspective, the positive impacts of Option 1 on the rights listed above under pointsi) – iii) would be the most limited, given the overall limited efficiency of this Option inachieving the identified objectives. Compared to this, Options 2 and 3 would have both apositive impact on fundamental rights by limiting or eliminating the use of border checks atinternal borders.
As compared to the status quo, in all options the overall impact on the fundamental rights ofthe possible increased use of compensatory measures to border checks at internal borders,such as police checks, would be positive, as it would concern a smaller number of persons,compared to border checks. However, the increased use of the compensatory measures also
requires strong safeguards to protect against abuses, including where the promoted measures
could become border checks in disguise. According to a study commissioned by the European
Parliament, the discretionary power conceded to police officers when conducting checks on
persons within the territory of a Member State in accordance with the current Article 23 of the
Schengen Borders Code, has led to racial profiling and discriminatory selection of the persons
being checked within the border areas.120 It can therefore not be excluded that Options 2 and3 which are based on an increased use of compensatory measures might increase this risk.
Regarding the protection of fundamental rights in case Member States take alternative
measures, none of the options provides for a list of such possible measures and thereby
provides for accompanying safeguards for fundamental rights. Nevertheless, whateveralternative measures they decide to take, Member States will have to ensure that these comply
with the Charter of Fundamental Rights and all other relevant international law as laid downin article 4 of the Schengen Borders Code. In addition, the alternative measures may not harm
the rights of persons enjoying the right of free movement under Union law (Article 3a) of the
Schengen Borders Code), and the controls should be performed in full respect of human120

Cf. Sergio Carrera, Ngo Chun Luk “In the Name of COVID-19: An Assessment of the Schengen Internal
Border Controls and Travel Restrictions in the EU”, September 2020, study commissioned by the European
Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE
Committee, PE 659.506, p.72f., citing e.g. K. Brouwer, M. van der Woude, J. van der Leun, “Op de grens van
het vreemdelingentoezicht: discretionaire beslissingen binnen het Mobiel Toezicht Veiligheid”, Tijdschrift voor
Veiligheid, Vol. 16, No. 2/3, 2017, p. 73; T.J.M. Dekkers, ‘Selecting in Border Areas: Profiling Immigrants or
Crimmigrants?’, The Howard Journal of Crime and Justice, Vol. 58, No. 1, March 2019, pp. 25-44.

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dignity (article 7 of the Schengen Borders Code). Finally, supplementary safeguards against
increased risk of racial profiling or other phenomena in the process of targeting checks which
could impede on fundamental rights, would stem from the current anti-discrimination
obligations under EU and national law. Additionally, implementing options 2 or 3 should beaccompanied by increased monitoring measures, e.g. in the context of Schengen Evaluations.
As regards the right listed under point iv) above – the right to privacy and protection of
personal data –, according to the public consultation, 25.25% of the responding EU citizens
consider that any automated control would be an unacceptable intrusion in their private life.
Moreover, it has to be stressed that all measures of considered options in the context ofsurveillance and monitoring technologies shall be subject to the applicable EU data protection
rules, irrespectively if they concern soft law measures or legislative proposals. In this sense,
all options ensure an adequate level of protection to the citizens.
6.3.

Other impacts

The options considered do not have any measurable impacts on the environment. The
persistence of border checks may generate increased CO2 emissions caused by waiting cars at
the borders, but no data are available in this regard. At the same time, the negative effects oflong-lasting border checks on the cross-border mobility could compensate or counterbalancesuch effects by limiting the overall volume of emissions. For this reason, the impacts on theenvironment will not be taken into account in the overall assessment of the options.
As regards the impact on administration, the costs of alternative measures are difficult to
calculate given that they concern the maintenance of law and order which are under the
exclusive responsibility of the Member States. Therefore, the Commission does not have any
data on this at its disposal.
Option 1, with soft law measures, does not create any new obligations for national
administrations. The call for better coordination based on the know-how developed in relation
to COVID-19 could lead to additional tasks in a future crisis situation. However, the positiveeffects of additional coordination should outweigh the burdens, as this could reduce thenumber of measures in place or allow for sharing the responsibility for specific actions withthe authorities of the neighbouring Member States.
By maintaining the possibility to reintroduce temporarily border checks at internal borders but
adding new obligations, such as a risk assessment, a standardised notification concerning thereintroduction of border checks at internal borders and an obligation to report regularly onthese, Option 2 could have the biggest direct impact on the administration. However, as themeasures proposed in this option should achieve an overall reduction in the use of borderchecks, the additional administrative burden should be limited.
As compared to Option 2, Option 3 - which does not require a risk assessment or reporting
but presupposes that the administration would get involved in the coordination andmonitoring of the compensatory measures - would have a moderate impact on theadministration.
The measures concerning the external borders would have only a positive impact on national
administrations which would follow a uniform approach, without having to negotiate bilateralarrangements with third countries.

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Overall, the perception of the administrative impacts may vary from one Member State toanother. In the Member States which in recent years have not resorted to border checks atinternal borders to address crisis situations, a more European approach would not make any
difference. However, for the Member States with long-lasting border checks at internalborders and which are underusing compensatory measures, the options considered may appear
to increase the administrative burden, depending on the combination of the compensatory
measures applied.
From the EU side, the new procedure of contingency planning for Schengen as well as a morestructured approach to notifications/reporting obligations, may require some small adjustmentof resources.
7.

HOW DO THE OPTIONS COMPARE?

Table 8 – Comparison of the three policy options

1.4.

Baseline

Option 1

Option 2

Option 3

Effectiveness

0

+

+++

++

Efficiency

0

+

+++

++

Proportionality

0

+

+++

+

Coherence

0

+++

+++

+++

EffectivenessAll three options are expected to have an impact in terms of managing the disproportionate
limitations to persons and goods moving in the Schengen area, and thus are expected to help
in achieving the identified general and specific objectives. However, their effectiveness isstrictly linked to the likely difference they would make compared to the baseline scenario.
Measures under Option 1 are expected to have a low-to-moderate positive impact. This isbecause the legislative provisions concerning the reintroduction and application of borderchecks at internal borders would remain unchanged. This means that the risk of
undue/disproportionate limitations could not be avoided in the future and Member States
would continue having a lot of discretion both as regards the reintroduction of border checks
at internal borders, and the application of mitigating measures.
Option 2, with the legislative modifications to the Schengen Borders Code, includes a set ofmeasures that could have a highly positive impact. This concerns in particular a proper
contingency planning for Schengen on the one hand and the development of concepts as ‘last
resort’ and proportionality on the other, which are expected to influence the way the Member
States decide on reintroduction and application of border checks at internal borders. Given
that the possibility to reintroduce border checks at internal borders is perceived by someMember States as an aspect of their sovereignty, this option offers the most realistic approachto the problems identified, and the most effective way of achieving the objectives that havebeen identified.
Option 3 may also appear to have a positive impact by eliminating the possibility of unilateraldecisions on reintroduction of border checks at internal borders. However, using this option
would overhaul the current Schengen architecture where the Member States keep the right todecide on the reintroduce border checks as a last resort measure. Thus this positive result
would lead at the same time to reluctance of the Member States to give up a power which isconsidered by many as an aspect of their sovereignty. Another drawback is related to the risk

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of insufficient transparency as to the measures applied by Member States to address identified
threats, instead of border checks: eliminating the possibility to reintroduce border checks atinternal borders unilaterally would be accompanied by eliminating the notifications to theCommission and the Council, leaving in force only the transparency obligations resulting
from the ‘Strawberry Regulation’121 (i.e. to inform the Commission about any obstacle to thefree movement among the Member States). In this sense, Option 3 cannot sufficiently
guarantee that the four freedoms guaranteed by the Treaties will not be limited in a
disproportionate manner.
1.5.

Efficiency

The analysis of the main impacts shows that all three options are expected to bring benefits
compared to the baseline scenario, without generating significant costs. The socio-economic
impacts are decisive in this assessment, given the lack of measurable impacts on theenvironment or on administration. The impacts on fundamental rights are comparable
between the three options, although Option 1 may have a slightly smaller positive effect inattempting to end the long-lasting measures at the internal borders.
Option 1 is expected to have the lowest efficiency in terms of socio-economic impacts. The
proposed soft measures are not likely to prevent a discretionary use of border checks atinternal borders in the future, which are generating significant costs for the economy andcommunities, in particular at regional level.
Option 2 is expected to be highly efficient because it creates new obligations for the Member
States and stronger tools of control for the Commission (e.g. risk assessment, regular reports
concerning the reintroduced border checks) which could increase the pressures on Member
States (by means of an opinion on necessity/proportionality).
Option 3 is expected to have a moderate efficiency because of the unpredictable impact of thecompensatory measures used by the Member States instead of border checks and the risk thatthey could become border checks in disguise.
1.6.

Proportionality

According to the principle of proportionality laid down in Article 5(4) TEU, there is a need tomatch the nature and intensity of a given measure to the identified problem.
Measures proposed under Option 1 do not impose any additional obligations on the actors.
They comply with the boundary test as the continued effectiveness of the Schengen area
depends on the concerted action of all the Member States.
However, the choice of the instrument (Communication of the Commission and other soft law
measures such as guidelines/recommendations) does not give a sufficient guarantee that theidentified objectives would be achieved. For this reason this option may raise concerns as toits proportionality.
Option 1, like Option 2, fully reflects the fact that a reintroduction of border checks at internalborders is widely considered as a legitimate measure of maintaining law and order.
Option 2, despite certain new obligations on the Member States related to the new provisions
on contingency planning, risk assessments and reporting obligations, appears to be fully
proportionate as the benefits resulting from better control over the use of border checks at

121

EN

Council Regulation (EC) No 2679/98 (OJ L 337, 12.12.1998, p. 8–9). For full reference see Annex 16.

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ENinternal borders would outweigh these burdens. This option also complies with the boundary
test as the continued effectiveness of the Schengen area depends on the concerted action of
the Member States. The increased use of compensatory measures such as police checks andthe use of new technologies furthermore decreases the intensity of the invasion on citizens’
freedoms. As these measures can be used in a targeted manner, based on risk assessment andare subject to the number of safeguards under national law, they generally have a lesser
impact on the freedom of movement than border controls which can concern all persons
crossing the internal border. The proportionality of such measures is further safeguarded by
the fact that the CJEU has limited the discretionary powers of Member States in carrying out
border controls and police checks on their territory122.
Finally, the choice of the instrument fully corresponds to the identified objectives. Moreover,the proportionality of this option results also from the targeted character of the intervention in
the Schengen Borders Code.
Option 3, like Option 2 can also be assessed positively as regards the choice of instrument.
However, it requires a much more significant intervention in the Schengen Borders Codecompared to Option 2 and would eliminate one of the powers of the Member States datingback to the origins of Schengen cooperation (Convention Implementing Schengen
Convention). It may also be perceived by some Member States as not compliant with theTreaties, as pursuant to Article 72 of the TFEU the Title referring to the area of freedom,security and justice “shall not affect the exercise of the responsibilities incumbent upon
Member States with regard to the maintenance of law and order and the safeguarding ofinternal security”. In this sense, it may appear as going beyond that what is necessary toaddress the identified problems.
1.7.

Coherence

The three options include measures that are coherent with the overall objective of theupcoming Schengen Strategy and other initiatives in this area intended to preserve the
Schengen area and to make it stronger for the future. They are complementary to the parallel
initiative to reform the Schengen Evaluation Mechanism which aims, among other things, torestore trust between the Member States and allow for a quick identification of deficiencies
which may put the overall functioning of the Schengen area at risk.
Furthermore, all three options take due account of the possibilities offered by newtechnologies which are likely to revolutionise border management once the new IT
architecture is deployed throughout the Schengen area. They also fully recognise and reflect
the know-how developed during the COVID-19 pandemic making an effort to integrate it asmuch as possible in the process of managing crisis situations.
In broader terms, by bringing more predictability to the reintroduction of border checks atinternal borders, the initiative may reinforce the effectiveness of the holistic approach
proposed by theCommission
on security and migration management.

122

Judgment of the Court of Justice of 22 June 2010, Melki and Abdeli, joined cases C-188/10 and C189/10,
ECLI:EU:C:2010:363, judgment of the Court of Justice of 19 July 2012, Adil, ECLI:EU:C:2012:508, C-278/12
PPU, judgment of the Court of Justice of 21 June 2017, A. (Europabrücke), case C- 9/16, ECLI:EU:C:2017:483.

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Table 9 – Impacts of the Options
Impacts/Options

EN

Option 1

Option 2

Option 3

Soft law changes

Mixed approach

Mixed approach 2

EffectivenessLow – Soft law
measures would have
only a limited impact
on the effectivenessby building politicalpressurebut
notguarantyingthat
previous
mistakes
concerning the use ofborderchecksatinternal borders would
be avoided in the
future.
The effectiveness ofsoft law measuresdepends on the good
will of the actors
involved.

High – The mixed
approach, relying on atargeted amendment of
the Schengen Borders
Code and an operational
tool for the border
guards, is expected toallow for attaining theidentified
objectives.
This
optionofferssolutionsfortheMember States (the newprocedure to be appliedin the situation ofcommon threat), for theCommission (new toolsof control) and for EU
citizens/industry
whoseek guarantees that thebasic freedoms will not
be limited without due
cause, and predictability(mitigating
measureslinkedwiththeproportionalityofborder checks, newrules on restrictions on
non-essential travel into
the EU at the externalborders).

Moderate to High – The
ambitious legislative proposal,
despite bringing the choice ofremedies to the EU level, may
fail to protect citizens andindustry from a discretionaryuse, by Member States, ofcompensatory measures in amanner that could make themborder checks in disguise. The
risk related to that undermines
the obvious advantages oflifting the decision on any
reintroduction of border checks
at internal border to the EU
level or prohibiting them in the
future as too old-fashioned andnot reflecting sufficiently theoverall interest of Schengen.

Efficiency

Low – The soft law
measuresdonotsufficiently guarantee
a change in theapproach to internalborders. The impactsof this option arelimited in terms ofassuring
that
thebenefits of the area
without
check
atinternal borders would
be restored for the
citizensandtheindustry.

High – The impact of
Option 2 is high interms of restoring thebenefits of the Schengenarea. This is thanks to
the legislative changes
allowing to ensure more
efficiently the seamlessconditionsfor
exercising the basic
freedoms by ensuringthat border checks are
truly the measure of lastresort, applied for alimited period of time
and
that
the

Moderate to High – The
impact of Option 3 can be highthanks to bringing to the EU
level the decision on the use ofborder checks or simply
prohibiting border checks atinternal borders. However, thelikely opposition of theMember States and the risk ofborder checks in disguiseundermine the efficiency ofthis option.

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ENcompensatory measures
are used to their fullpotential.
Proportionality

Low - This option
does not generate any
automatic obligationfortheactors.
However, the soft law
measures might be notproportionate in viewof the scale of the
problems that need tobe addressed.

High - All measures
under option 2 areproportionate to theidentified problems anddo not go beyond whatis necessary to achieve
the specific objectives.

CoherenceHigh - This option iscoherent with thedevelopment of the
Schengen acquis.

High - This option is High - This option is coherent
coherentwiththe with the development of thedevelopment of the Schengen acquis.
Schengen acquis.

8.

PREFERRED OPTION

8.1.

Option 2

Low - The measure consistingin depriving the Member Statesof the possibility to unilaterally
reintroduce border checks orbanning the reintroduction ofborder checks at internalborder altogether may go
beyond that what is necessary
to address the identified
problems.

Option 2 (mixed approach) is considered to be the preferred option. This choice reflects thebest the cumulative score of this option as regards effectiveness, efficiency andproportionality. It draws the lessons from the past and, at the same time, is sufficiently
ambitious. It respects the views of the Member States concerning the role of border checks inaddressing serious threats while at the same time respecting also the legitimate expectations of
the EU citizens and other persons benefiting from the absence of border checks at internalborders as to preserving the Schengen area as one of the main enablers of the freedom of
movement of persons and goods.
8.2.

REFIT (simplification and improved efficiency)

According to the Commission’s Regulatory Fitness and Performance Programme (REFIT), allinitiatives with the objective to change existing EU legislation should aim to simplify anddeliver stated policy objectives more efficiently (i.e. reducing unnecessary regulatory costs).
The analysis of impacts suggests that the preferred option should help to optimise theallocation of resources in case of crisis and to limit the costs of reintroduction of borderchecks at internal borders. However, it should be noted that the new obligation concerning therisk assessment, the new template for notifications of reintroductions and reporting
obligations, as well as new tasks related to the use of compensatory measures, may lead to asituation where the overall burden on Member States will not be reduced, and in some caseseven increased.
Additional obligations would arise for the EU institutions. This would concern creating thecapacity to take substantiated decision at the EU level on the use of restrictions on nonessential travel into the EU at external borders but also to apply the contingency planning incase of need.
No impact on EU bodies and Agencies is expected.

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However, these additional tasks should generate limited additional costs compared to thesignificant positive impact on managing the crisis situations putting the overall functioning of
Schengen area at risk.
Table 10 – Impacts on simplification and administrative burden
Baseline
Option 1
Option 2
Option 3
On national
administrations
On EU institutions
On EU bodies andagencies

Preferred
Option

0

+

+

+

+

0
0

–

+
-

–

+
–

+++ high, ++ medium, + low, 0 neutral and – negative.
The cost variations for Commission and EU bodies and agencies would be limited andpartially offset by other measures.
9.

HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?

The evaluation of the targeted amendment of the Schengen Borders Code as regards the
temporary reintroduction of border checks at internal borders will depend on the information
to be received from the Member States.
Table 11 includes a non-exhaustive list of quantitative indicators proposed to monitor theachievement of policy objectives identified in this Impact Assessment. These indicatorsreflect and define, in practice, the success of the policy options. However, as the proposed
option concerns addressing exceptional situations, the regular measurement of the indicators
is not possible.
Moreover, this unpredictability prevents setting fixed quantitative targets. However, it may be
assumed that [within a year] from the adoption of the new rules the long-lasting border checks
at internal borders should be lifted and the only border checks in place at that time will be
carried out for a limited period of time under the current rules, or based on the newcontingency planning procedure. Also, in the same period of time, the Schengen Handbook
should be updated to provide an overview of relevant guidelines/recommendations to be
applicable in case of temporary reintroduction of border checks at internal borders in several
Member States.
The Commission website https://ec.europa.eu/home-affairs/what-we-do/policies/borders-andvisas/schengen/reintroduction-border-control_en informing the public on the current borderchecks at internal borders in place will remain the main IT tool allowing to monitor andevaluate the situation at the internal borders. Given the limitations of the legal basis tomeasures at the internal borders, the Commission cannot develop a separate tool on the use ofcompensatory measures such as police checks in the border areas. However, the conditions ofuse of the compensatory measures at the internal borders (spot police checks/new
technologies) will be subject to monitoring in the framework of the Schengen Evaluation
Mechanism, including any possible on-spot visits at the internal borders.

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Table 11 – Success indicators
Specific Objectives

Operational Objective

Indicators

Target4.2.1 Creation of a • Reintroduction ofcontingency
borderplanning
forchecks/prolongation
Schengenof border checks incase of the same
threat in several/all
Member States isdiscussed/decide atthe EU level
respectively• Number of reintroductionof border checks atinternal borders↓
decreasingtrend• Duration of reintroduced
border checks at internalborders↓
decreasing
trend

4.2.2 Application of • Default set of
mitigating measuressafeguards
andspecific
applicable in thesafeguards for crosssituation of the sameborder regions
threat for several/all
Member States• Number of incidents atinternal borders where thereintroduced borderchecks affect the
freedoms in a
disproportionate manner↓decreasing
trend

EN

4.2.3
Uniform • restrictions on nonapplicationofessential travel intomeasures at thethe EU applicable atexternal borders inall external borders
particular in case ofa threat to publichealth• Number of third country
nationals detected in the
EU (or upon exit) who
should have been subject
to the temporary
restrictions on nonessential travel into the
EU

n.a.

4.2.4 Increased use • Less newofcompensatory
reintroductions ofmeasures to address
border checks
the identified threats • More examples ofuse of compensatory
measures• Number of new
notifications concerning
the reintroduction ofborder checks at internalborders↓
decreasingtrend• Number of best practices↑
increasing
trend

4.2.5 Lifting the • Current borderlong-lasting borderchecks are notchecks at internal
prolonged
borders• Number of prolongation↓
decreasing
trend

of border checks

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ENANNEX 1: PROCEDURAL INFORMATION
1.

LEAD DG, DECIDE PLANNING/CWP REFERENCES

The lead DG is the Directorate-General for Migration and Home Affairs (DG HOME).
The agenda planning reference is PLAN/2020/8753.
The Commission Work Programme for 2021123 provides, under the heading ‘Promoting
our European way of life’ a legislative initiative to amend the Schengen Borders Code.
2.

ORGANISATION AND TIMINGThe Secretariat-General set up the Inter-service Steering Group to assist in preparing theinitiative on 10 December 2020. The following Directorates General representatives
participated in the ISSG work: SJ, DG GROW, DG MOVE, DG RTD, DG HOME, DG
JUST, JRC, DG SANTE and EEAS.
An Inception Impact Assessment was published on 8 January 2021 and was open to
feedback from all stakeholders for a period of 4 weeks, until 5 February 2021124.
Within this framework, the impact assessment was subsequently prepared.
3.

CONSULTATION OF THE RSB

On 19 April 2021, the Directorate-General for Home Affairs submitted the draft Impact
Assessment to the Regulatory Scrutiny Board, in view of a hearing that took place on
12 May 2021.
The recommendations of the Board were incorporated in the Impact Assessment Reportas follows:
Recommendations of the RSB

How the RSB recommendations reflect in thecurrent Impact Assessment Report(1) The report should begin bydescribing the main elements ofthe 2017 proposal. It should
explain the lessons learnt from thenegotiations and how the COVID19 crisis has brought in new
perspectives. It should also
indicate the room for manoeuvrethat the negotiations left for thisinitiative and how it is reflected in

The Impact Assessment presents the overall
objective of the 2017 proposal (p. 6), the reasons
why Member States did not accept modifications oftheexisting
time-limits
for
unilaterally
reintroduced border controls during thenegotiations of the 2017 proposal (p.35) and how
the COVID-19 crisis have shown how threats topublic health require uniform rules, which ad hoc
measures taken by Member States cannot ensure123

COM(2020) 690 final of 19.10.2020.
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12827-Temporary-checks-atinternal-borders-amending-the-Schengen-Borders-Code
124

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the policy options.

(p.35).
Reference to the lessons learnt from the discussion
in 2017, can be found throughout the description of
the three policy options (Sec. 5.2),
In Section 5, the room for manoeuvre left for the
new proposal of the amendment of the Schengen
Borders Code is further explained and addressed in
the different policy options.

(2) The report should provide
moreevidenceontheeffectiveness of internal bordercontrols and alternative measures
to such controls. It should explain
what lessons can be drawn frompast introductions of internalborder controls (in particularduring the COVID-19 crisis) andwhy
existing
coordination
mechanisms failed. It should also
clarify how it assesses the
proportionality of internal bordercontrols vis-à-vis alternative
measures. The report should better
explain the observed coordination
deficiencies of the Integrated
PolicyCrisisResponsemechanism during the COVID-19
pandemic.

Section 2.2.1 was expanded to include existing
example from a Member State of a system
implemented that does not require continuous
physical control at the border.
To illustrate the lessons learnt from past
introductions of internal border controls and why
existing coordination mechanism failed, a newannex 7 was added. It highlights three identified
threats to the Schengen Area (migration, terrorism
and management of the external borders), which
pushed Member States to reintroduce checks at theinternal borders. Section 2.1.1.2.b) was also
improved and deepened to address therecommendations of the RSB.
On the judgement of joined cases C-188/10 andC189/10, the CJEU limited the discretionary
powers of Member States in carrying out bordercontrols and police checks on their territory,safeguarding the proportionality of compensatory
measures, as further developed in Section 7.3
Section 2.2.2 was expanded to better explain thecoordination deficiencies observed at the Integrated
Policy Crisis Response during the Covid-19
pandemic.

(3) The report should describe the Section 5.2 where policy options are presented wascontent of the policy options morein detail, including the preferred
policy option. It should describe
how the policy options will be
implemented and what thedifferent choices (sub-options) for
this implementation are. In
particular, it should set out how
the new coordination mechanism
and contingency planning wouldEN

further expanded so as to better explain the
different policy options, addressing for each andevery one of them how effective enforcement
would be ensured.

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ENwork and how the institutional
decision process and its temporalframework would function. Itshould be clear about how
effective enforcement will beensured.
(4) The report should go beyond apurely qualitative impact analysis
and present quantitative data
wherever possible. It should
further specify the benefits oflifting internal border controls,possibly distinguishing between
sectors. The report could draw
from past efforts of calculating thecost of non-Schengen. It could
also refer to anecdotal evidence orcase studies (while clearlymarking them as such), forexample for the administrative
costs. The report should also be
more explicit about the possible
risks of alternative measures for
fundamental rights and explain
how such risks can be contained.
For the comparison of the policy
options, the comparative tables
should be in line with theaccompanying text.

To address the lack of quantitative data identified
in the previous report, the Impact Assessment
report incorporated the results from the public
consultation carried out by the Commission(Section 2.1.1.b), p. 17) and added data on theimpact on intra-EU trade and GDP caused byreintroduction of checks at internal border due tothe COVID-19 crisis (Section 2.1.3.2, p. 26).
Moreover, the policy options (Section 5.2.) weredeveloped taking into account data concerning
migration and terrorist attacks, which demonstratethat border checks are either not justified anymore
or are not the most efficient in addressing theidentified threats.
Specific quantitative data was also included toclarify the benefits of lifting internal bordercontrols on different sectors, such as air travelindustry and cross-border regions (Section 2.1.3.1,
p. 21-25).
On pages 25-26, the report outlines the requested
estimation of the administrative costs of nonSchengen (between EUR 0.6 and EUR 5.8 billion)
and of the physical establishment of bordercontrols (estimated at EUR 7.1 billion),
demonstrating that the physical establishment ofborder controls have a higher impact on the total
costs when the period of reintroduction is shorter.
The section on the impact on fundamental rights
was deepened, to include the analysis on theprotection of fundamental rights in case Member
States take alternative measures. (Section 6.2, p.
49-50).
For the comparison of the policy options, table 8
was updated to better reflect the accompanying
text.

(5) Stakeholders’ views should be The current version of the Impact Assessment has
reflected throughout the report. In expanded in Annex 2 the results of theparticular, the report should stakeholders’ consultation that took place between

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transparently report diverging
views and address potential
concerns on the policy options,
implementation
choices
andimpacts.

November 2020 and February 2021.
Moreover, the views of stakeholders are also betterreflected throughout the document, allowing for amore transparent report, as follows:- Section 2.1.1.a) p. 3 presents the results of thecitizen’s dialogues that took place in the High
Rhine region in Summer 2020, where cross-border
citizens and businesses exposed the impact of
unilateral reintroduction of internal border controls
and presented their conclusions on how to address
situations of crisis.
- Section 2.1.1.b) p. 19 presents the results of theExpert meetings on measures allowing for a more
effective cooperation within the Schengen Area inJanuary 2021. It also highlights the opinion ofindustry and carrier representatives who provided
conditions that should be met for the effective useof new technology solutions in border services.
- Section 2.1.2, p. 20, 21 shows the results of the
stakeholders’ consultations, encompassing the viewof EU citizens and business associations andcompany/business organisations.
- Section 2.2.3, p. 29 presents the view of EU andnon-EU citizens during the public consultations.
- Section 5.2 provides how stakeholders will be
impacted by each of the three policy options raisedin the report.

4.

EVIDENCE, SOURCES AND QUALITY

The starting point for this Impact Assessment report was the DG REGIO ‘The effects of
COVID-19 induced border closures on cross-border regions - An empirical reportcovering the period March to June 2020’125 and the ‘20 case studies covering the period
March to June 2020’126

125

https://op.europa.eu/en/publication-detail/-/publication/46250564-669a-11eb-aeb501aa75ed71a1/language-en/format-PDF/source-search126
https://op.europa.eu/en/publication-detail/-/publication/bf14de68-6698-11eb-aeb501aa75ed71a1/language-en

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The Commission also relied on the studies on costs of non Schengen prepared by theEuropean Parliament127, notifications of the Member States concerning the temporary
reintroduction of border checks at internal borders and the reactions from the public
manifested in the correspondence sent to the Commission.
To assess the impact of the different options, information on stakeholders’ views throughthe stakeholder consultation activities, as per Table 1, Annex 2, were a main source of
information.
The quality of the data on duration and grounds of decisions on temporary reintroductionof border checks at internal borders is problematic. Although it relies on direct sources(Member States concerned), the level of detail and parameters used by the Member
States to demonstrate the need of border checks varies a lot and is difficult to compare.
Also the use of data concerning the impact of border checks at the cross-border regions
was challenging because of the fact that very little hard data is available, as regards theactual cost of border checks at internal borders in particular during COVID-19 crisis,
despite the serious effort made by the Commission to collect such data, as part of the
preparation of this Impact Assessment.
5.

ANALYTICAL METHODS

To the extent possible, the Impact Assessment relies on quantitative analysis of the data
available. This concerns in particular the use of border checks at internal borders. In theabsence of quantitative data on the actual reintroduction of border checks at internalborders, the Impact Assessment relies on estimates concerning the quantitative aspects ofreintroduction of border checks at internal borders in the scenario of a permanent
reintroduction of border checks at internal borders. As a large part of the issues at stake
do not have a quantitative but rather a qualitative profile, the qualitative evidence has
been used to a much larger extent, in particular to identify trends and the correlation
between different factors and measure the different options’ impact.

127

Directorate-General for Internal Policies Policy Department A: Economic and Scientific Policy,
European Parliamentary Research Service European Added Value Unit, PE 578.974-May 2016: “Cost of
non-Schengen: the impact of border controls within Schengen on the Single Market”, requested by theEuropeanParliament's
Committee
onInternal
MarketandConsumerProtection,
https://www.europarl.europa.eu/RegData/etudes/STUD/2016/578974/IPOL_STU(2016)578974_EN.pdf.

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ANNEX 2: STAKEHOLDER CONSULTATIONThe stakeholders’ consultation took place between November 2020 and February 2021
and encompassed, primarily, targeted stakeholders by way of the Schengen Forum andthematic workshops divided according to the topic and stakeholders involved. It
included Member States, European Parliament, carriers and NGOs. This approach
appeared preferable given the very different interests and issues at stake for the different
stakeholders. The Commission prepared discussion papers to steer the discussion in the
different meetings.
1.

SCHENGEN FORUM

Under the New Pact on Migration and Asylum, the Commission announced theestablishment of a dedicated Schengen Forum, involving the relevant national authorities
such as Ministries of Interior and (border) police at national and regional level in order tostimulate more concrete cooperation and more trust among Member States to support thewell-functioning of Schengen.
The 1st Schengen Forum took place on 30 November 2020. At the forum, EU institutions
and Member States provided political guidance on the future of Schengen, agreeing that
there is a need of taking steps to preserve Schengen. The Conclusions of the Chair fromthe meeting are attached as Annex 5: Conclusions of the Chair – Schengen Forum 30
November 2020
2.

MINUTES: EXPERT MEETINGS ON MEASURES ALLOWING FOR A MORE EFFECTIVE
COOPERATION WITHIN THE SCHENGEN AREA, 14 AND 22 JANUARY 2021

Attendance: The meetings were attended by experts from a) NGOs and airport andairline representatives b) Members of the European Parliament and their representatives,c) Schengen Member States and Schengen Associated Countries, d) carries’
representatives and Commission services (DG HOME).
2.1. Explanation of the meeting’s objective (DG HOME)
In an initial statement, the chair recalled the objective of the meeting, the collection ofviews on the future cooperation within the Schengen Area in view of the adoption of the
Schengen Strategy and a proposal for an amendment to the Schengen Borders Code
(SBC). The focus lies on the main challenges facing Schengen, particularly, the current
COVID-19 pandemic and the reintroduction of internal border controls by Member
States, in some cases exceeding the legal time limits.
2.2. Introduction to the topics
Schengen governance: Following the unsuccessful 2017 proposal for a revision of the
SBC, the COVID-19 pandemic made a new approach to Schengen governance necessary.
The Commission’s inception impact assessment for the future of the SBC foresees four
options: 1. No changes to the SBC and the 2017 Recommendation on police
cooperation. 2. Adoption of non-legislative measures, probably a new
Recommendation on the use on police checks and the use of new technologies. 3.
Legislative amendment of the SBC on alternatives to border control, particularly on

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Article 23, regarding the use of police power. 4. Legislative abolition of internalborder controls.
COVID-19 response: The Schengen Strategy and the amendment to the SBC are also an
opportunity to reflect on the COVID-19 response. Given that there is no legal basis for
the Commission to act in this field, the Commission’s current reaction to the COVID-19
pandemic is based on soft law, i.e. recommendations and guidelines. It is now time toreflect on a permanent framework for future comparable cases of a common threat
for all Member States, e.g. pandemics.
2.3. Exchange of views
2.3.1. NGOs and airport and airline representatives (14.01.2020)
A) Schengen governanceRegarding the introduction of internal border controls, one NGO called for moreevidence, particularly on the risk of open borders compared to the costs and theeffectivity of internal border controls. Another NGO underlined the importance ofalternatives to internal border controls, holding that Member States sometimes rely on
over-policing and securitization of borders. The Commission clarified in this regard thatpolice checks, as alternative measures, may not have a similar effect as border controls.
The human rights NGOs raised concerns about fundamental rights violations,
including push-backs, at the internal and external borders. Some of them expressly
called for a holistic approach on Schengen and the Common European Asylum
System (CEAS). One NGO raised concerns regarding the use of bilateral readmissionagreements to circumvent the applicable rules, stating that enhanced police checks could
aggravate the issue. The Commission clarified that readmission agreements with otherMember States are in line with the principle of non-refoulement and recalled the focus of
the meeting on the internal dimension of Schengen.
Some NGOs pointed out that a new system requires safeguards to prevent theundermining of human rights and freedom of movement in the name of security,
including a solid accountability mechanism. The Schengen evaluation mechanism(SchEval) should be strengthened, particularly regarding fundamental rights. Also more
involvement of the civil society in SchEval missions at internal borders was requested by
one organisation. One NGO pointed out that police checks, as alternative measures, must
include the necessary protection safeguards for persons who express the intention toseek asylum. Another NGO noted that the interaction between the SBC andinternational legal frameworks, e.g. the law of the seas, must be taken into account.
Also concerns about different data protection standards were raised, which theCommission clarified referring to the GDPR and the complementarity of data protection
and new technologies.
The representatives of airlines and airports opposed the idea of introducing obligations
on carriers to check identity documents. This would be a delegation of Member States’
responsibility on a third party, slow down the processes and incur costs. If any such rules
should apply, all types of carriers should be subject to the same measures. One
representative underlined the industry’s openness for new technologies, but

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emphasized that these should be in line with international standards, e.g. IATA.
Possible new elements of the SBC should be integrated into the EES and ETIAS.
B) COVID-19 response
The representatives of airlines and airports favoured more coordination under theCommission to travel restrictions at EU level (quarantine and testing), a common
regime for vaccination and travel and coherence between intra-EU travel and travel into
the EU. Given the high impact on airlines and airports, more information and dialogue
with DG HOME, DG SANTE and DG MOVE would be appreciated. The industry fears
that the worst is still ahead (cf. new virus variants, slow vaccination process) andrequested forecasts and scenarios for vaccination rates in order to prepare. Furthermore,
the elaboration of a specific plan for pandemics/crisis of this magnitude (cf. Council
request to DG MOVE for a pandemic plan for freight), and a greater focus on intelligent
solutions were proposed. The Commission clarified that the SBC and any possible
amendment only applies to the possible reintroduction of checks at internal borders, notto restrictive measures such as quarantining and testing.
The Commission’s guidance on the implementation of asylum in the context of
COVID-19 was welcomed by one NGO. Such guidance should also be a key element in
future scenarios.
2.3.2. Members of the European Parliament and their representatives (14 January
2021)
A. Schengen governanceHalf of those who took the floor criticised the Commission for not enforcing thecurrent rules on internal border controls properly and requested stricter enforcementin the future. One participant explicitly asked about the Commission’s handling ofMember States that refuse to comply, referring to a monitoring mechanism. The
Commission explained that the fact that a considerable number of Member States that
previously complied with the rules for decennia now stopped complying suggeststhat there might be a general inadequacy of the rules for current challenges.
Therefore, initiating infringement procedures might not be the solution, and theCommission needs to consider adapting the rules.
One participant criticised the time needed to process Schengen evaluations. The
Commission pointed out that the SchEval mechanism is currently under revision andinformed about the possibility to comment on the impact assessment until 1 February
2021.
Some participants called for stricter rules on reintroductions, particularly stronger
justification requirements, a quicker involvement of the Council and a stronger role of
the Commission. Another proposal was the introduction of new safeguards with eachprolongation of internal border controls. Furthermore, the lack of a common
understanding of border controls and the necessity of clearer rules leaving less room
for interpretation were raised.

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One participant addressed the need for enhanced police and judicial cooperation, while
another called for more rules on police checks within the territory. Some participants
asked for clarifications regarding the difference of border controls and police
checks. The Commission pointed out that the idea was to offer Member States a stronger
legislative basis for the use of police checks at the borders, allowing them to intensify
police power instead of reintroducing border controls. Police checks are more flexible
and easier to apply while border controls are only related to the crossing of the border.
One participant warned about the risk of racial profiling in the context of theEuropean databases.
Fundamental rights violations and push-backs at the external and (despite the CEAS
and the Dublin rules) internal borders were criticised by one participant, who called for acoherent system. The Commission underlined that the rules to comply with fundamental
rights when applying the SBC are in place (Article 4 SBC) and that the new screening
proposal includes a monitoring mechanism (despite the current opposition of a number ofMS).
B) COVID-19 response
One participant considered that the best interest of the whole Schengen area be given
more weight than individual interests of Member States and called for a clarification of
the rules and criteria. Another participant considered that, despite some leeway, MS
should bring evidence, as it is not clear how border controls and travel restrictions haveaffected or prevented the spread of the virus.
2.3.3. Schengen Member States and Schengen Associated Countries (14 January
2021)
A) Schengen governance
A number of Member States expressed their preference of a holistic approach to
Schengen, including e.g. the external borders, migration and the CEAS. Some Member
States also highlighted the dependency of the absence of internal border controls from
effective controls at the external border. In this regard, the Commission clarified that theexternal dimension is subject to the Pact on Migration and Asylum, not to the Schengen
Strategy.
There was broad consensus among Member States against a general abolition of thepossibility to reintroduce internal border controls, holding that police controls are noalternative. Some Member States also underlined the need of independency of thedecision to reintroduce internal border controls. Given the general rejection of a possible
abolition of internal border controls, a considerable number of Member States expresslyreferred to “additional measures” instead of “alterative measures”, the term used by theCommission. The idea to establish an intermediate level between internal bordercontrols and their absence, e.g. in the form of intelligence driven checks police checks
at the borders, was in general supported.
Some Member States underlined that police checks and border controls must be
differentiated clearly. In this regard, also the Commission’s guidance on police checks

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was mentioned. Some Member States referred to the question of feasibility of police
checks under their national law. Also the need for clear rules was addressed. Few
Member States suggested focusing on cross-border police and criminal justicecooperation. In this regard, the need for sufficient flexibility for regional and bilateralpolice cooperation was underlined.
A considerable number of Member States asked to consider the intra-Schengen use oftechnology currently employed only at the external borders. Some Member States
proposed the use of API and PNR as well as checks against EU databases at internalborders. Further proposals included the use of PNR for police checks and intra-EU
flights and a feasibility study on the use of PNR for other means of transport. In thiscontext, the Member States underlined that the use of new or additional technologies at
the internal borders would need to be in line with EU legislation, particularly the GDPR.
Two Member States also proposed to intensify the exchange of information at theinternal borders similar to the one in place at external borders.
The Dutch AMIGO Boras System, a camera system that recognizes license plates andadditional risk indicators to identify travellers, was given major attention, with someMember States considering a possible expansion of the system within the Schengen area.
Most of the Member States that addressed carriers’ liability in their interventions weregenerally open to such possibility, considering that it could contribute to theeffectiveness of border controls. Few Member States were more sceptical, arguing that it
would pose a disproportional burden to carriers. The necessity of an impact assessment
was raised by two Member States.
B) Covid-19 response
The Member States acknowledged the overall good cooperation at EU level, but
recognized that it started too late. While Member States agreed that the cooperation
should be further strengthened, they diverged on how it should look like. Both the ICPR
Council and the Commission were considered as suitable coordinating bodies. The
essentiality of common epidemic criteria and regularly ECDC updates on the epidemic
situation was also raised.
Another question on which Member States diverged was whether the cooperation should
be consolidated into secondary legislation. While some Member States favoured a soft
law approach, considering the need for flexibility and the different situations of Member
States, others would prefer common legislation.
2.3.4. Carries’ representatives (22 January 2021)
A) Schengen governanceThe carriers’ organisations welcomed the Commission’s recommendations andguidelines related to internal border controls during the COVID-19 pandemic,
particularly on the green lane policy and underlined the need for common rules andtheir harmonised application. One representative noted that besides the transport ofcargo, carriers also faced problems regarding the repositioning of personnel.

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One carriers’ representative acknowledged that the use of technology could facilitate
the work of border services, holding that new technology solutions must be
coordinated by clear rules and may not lead to delays or increased waiting time. A
potential challenge would be the compliance with the GDPR, since not many companies
are specialised in storing such data. The Commission pointed out that railway operators
already participate in the PNR system of information sharing in some Member States.
However, this information could also support police checks, which are currently
considered as possible alternative to border controls.
One representative asked for a clarification on the extent of such liability. The
Commission explained that the concept of carriers’ liability regarding external borders isbased on the Schengen Convention and obligates carriers to verify if passengers hold thenecessary documentation (passport and visa). If carriers fail to carry out suchverifications, they can be subject to sanctions, and, if a passenger is refused entry into the
Schengen area, need to ensure the return transport. A possible intra-Schengen
implementation of carriers’ liability would include basic checks of passengers’ travel
documents. It would not impose any obligations on freight transport operators.
The only representative of passenger transport present was sceptical about the
introduction of an intra-Schengen carriers’ liability and pointed at the necessity to
distinguish between different means of transport. Rail staff has neither the authority
nor the equipment to carry out border checks. As negative example of a comparable
obligation, the representative referred to the carriers’ obligation in one Member State tocheck the passengers’ compliance with the requirement to have a negative PCR test
without the rail staff having the necessary competence nor the means to enforce suchobligation. The Commission reminded about the special position of railways in thecontext of carriers’ liability.
B) COVID-19 response
Carriers saw a need for further harmonisation of the COVID-19 response and therules governing border controls, particularly on the interpretation of the term of“essential personnel”. The term should be interpreted broadly, in line with operational
needs, e.g. covering besides pilots also on-board engineers, and in coordination withborder and migration authorities and civil aviation organisations. One carriers’
representative underlined that such harmonisation should also cover the neighbouring
countries. Another concern was the timely information, particularly on upcoming
measures by the MS, also in the view of liability and passenger rights.
Various carriers’ representatives indicated that it is difficult to estimate the costs
caused by the internal border controls at this point. The Commission underlined that
also data from 2015 onwards, when internal border controls were introduced in responseto terror threats and irregular migration would be useful for the Commission’s impact
assessment.
3.

PUBLIC CONSULTATION

In addition, a public consultation was carried out. It was launched on 19 January 2021,
with the deadline for contributions set at 16 March 2021.

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The Commission published the Inception Impact Assessment on its website128 for fourweeks, but only received limited feedback, with four comments only: one from France,
one from Croatia, one from Ukraine and one anonymous.

128

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12827-Amendment-of-theSchengen-Borders-Code.

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Table 1 – Stakeholders’ consultation
Method ofconsultation

Stakeholder group

Consultation
periodObjective of theconsultation

Schengen Strategy
1st Schengen
Forum

EuropeanParliament, 30 Nov 2020
Member States, European
Commission

Roadmap

Public14 Jan – 5 Feb

PublicConsultation

Public19 Jan – 16 Mar

To obtain support
on the strategy
main elements

collect
feedbackfrom citizens, civilsociety and otherstakeholders

Revision of the Schengen Borders Code
Inception
ImpactAssessment129

PublicWorkshops at
technical level-(measures
allowing for amore effective
cooperation
withinthe
Schengenarea)
Workshop on
Integrated
BorderManagement

Public8 Jan – 5 Feb 2021

Member States

14 Jan 2021

- European Parliament

14 Jan 2021

Collect views fromdifferent categories
of stakeholders-

Civil Society

14 Jan 2021-

Carriers

14 Jan 2021, 22 Jan
2021-

Member States

25 February 2021

Wide public

19

January-

Collect view andexchange
best
practices

16 Collect views

129

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12827-Temporary-checks-atinternal-borders-amending-the-Schengen-Borders-Code

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Method of
consultation
consultations

Stakeholder group

Consultation
periodObjective of theconsultation

March 2021

Analysis of the public consultation “Communication from the Commission to theEuropean Parliament and to the Council: Towards a stronger and more resilient
Schengen Area”:
The public consultation “Communication from the Commission to the European
Parliament and to the Council: Towards a stronger and more resilient Schengen Area”
had the objective to collect feedback from citizens, civil society and other stakeholders
with view on the adoption of a Strategy on the future of Schengen. During the
publication period from 19 January 2021 to 16 March 2021, 157 replies were registered.
99 participants were EU citizens (63.06%), 40 non-EU citizens (25.48%), 6 businessassociations (3.82%; from Germany, Belgium, Luxembourg and Russia), 4
company/business organisations (2.55%; from Germany, Slovakia, Sweden, Ukraine), 4
public authorities (2.55%; two national authorities/agencies from the Netherlands, twolocal authorities from Germany and Poland), 2 trade unions (1.27%; from Germany andSpain), 1 academic/research institution (0.64%; from Hungary) and 1 NGO (0.64%; from
Belgium).
The public consultation was based on a questionnaire with 10 multiple choicequestions on the frequency (Q1) of and reasons (Q2) for travel within the Schengen area
(before the Covid-19 pandemic), the participants’ view on the Schengen Area being oneof the EU’s biggest achievements, being beneficial for social and/or economic reasonsand having more advantages than disadvantages (Q3), the need for reinforcement ofcertain elements of the Schengen framework (Q4), the contribution of these elements tothe security of the external Schengen borders (Q5), the EU coordination during theCovid-19 pandemic (Q6), the impact of reintroduced internal border controls on the
citizens’ lives (Q7), the substitution of border control through non-systematic alternative
measures, such as police checks (Q8), the intensified use of modern technologies withview on their impact on private life (Q9) and the importance of monitoring of thecommon Schengen rules (Q10). The questionnaire did not include free text fields for
additional comments. However, with direct reference to the public consultation, Airport
Council International (ACI) Europe and Fragomen Europe Immigration Taskforce send
their written considerations by email.
Results: With 88.55% (139 replies), the large majority of all replies received, wasgiven by participants in their capacity as private persons, of which 71.22% were EUcitizens and 28.78% non-EU citizens. Most answers were received from German (33,23.74%) and Ukrainian (32, 23.02%) citizens, followed by Slovakians (11, 7.91%) and
Italians (10, 6.47%). The reason for the large share of Ukrainian participants is notapparent.
Overall, the most important reason for travelling of private persons is tourism(85,61%), followed by family/relationship reasons (43.88%) and business (other thancommuting) (35,25%). 14.39% of the responding EU and non-EU citizens are regularly

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commuting between Schengen States for study or professional reasons. In general, thereasons for travel in the Schengen Area are comparable for EU-citizens and non-EU
citizens with the only exception of commuting between Schengen States for study or
professional reasons. The share of commuting non-EU citizens (22.50%) is more than
twice as high as the one of commuting EU-citizens (11.11%).
The great majority of EU and non-EU citizens sees the Schengen Area positive:
82.01% of the EU and non-EU citizen agree that the Schengen Area is one of the biggest
achievements of the EU (12.23% tend to agree), 85.61% consider the Schengen Area as
good for economic/social reasons (7.92% tend to agree) and 79.14% consider that theadvantages of Schengen outweigh the disadvantages (12.23% tend to agree). All
statements were seen slightly more positive by non-EU citizens, who did not at all“disagree” or “tend to disagree” with the proposed positive statements.
With regard to the development of the Schengen framework, particularly the elements
the participants would like to see reinforced, 82.83% of the EU citizens indicated thecoordination in crisis situations, including common threats such as pandemics, 62.63%
the removal of obstacles to cross the internal borders, particularly long-lasting
reintroductions of internal border controls and 51.52% the control and compliance with
the Schengen rules. The replies of the non-EU participants revealed the same pattern, but
overall, less non-EU participants attributed importance to the reinforcement of the three
proposed elements. 62.59% of the EU and non-EU citizens consider that theimplementation of these elements will increase the security at the external borders,
finally strengthening the Schengen Area (16.55% disagree). Being asked if acoordination at EU-level of measures applicable at the external borders of the EU in
response to common threats such as a pandemic is beneficial, 90.91% of the EU
citizens agreed and only 5.05% disagreed. With 72.50% the share of agreement among
non-EU citizens is considerably lower (12.50% disagreement).
41.01% of the participating EU and non-EU citizens affirmed that they have not been
affected by internal border controls, while 25.18% indicated that they had to wait andtheir trip was delayed. 38.85% hesitated to travel or decided not to travel due to theinternal border controls. The share of Non-EU citizens being unsure about required
documents was with 42.50% almost twice as high as the share of EU-citizens (21.21%),
which might also have translated into the higher share of Non-EU citizens being hesitantto travel or deciding not to travel (47.50% compared to 35.35%).
72.66% of the EU and non-EU citizens agreed that border controls at internal borders
should be substituted, whenever possible, by non-systematic alternative measures,such as police checks and modern technologies (14.39% disagree). The share of EU
citizens agreeing with the substitution of border controls by alternative measures(74.75%) was slightly higher than the share of non-EU citizens (67.50%). While a clear
majority (73.38%) of the private persons did not see problems with automated control
measures in the internal border areas, provided that they are reasonably regulated by law
and fully respect data protection rules, more than one fourths of EU citizens (25.25%)
opposed such measures, considering them as “an unacceptable intrusion” in their private
life. Still considerable 12.50% of non-EU citizens shared this view.
Only a slight majority (52.52%) of EU and non-EU citizens fully agreed that a regularand comprehensive monitoring of the respect of common rules and standards across the

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Schengen area, with the involvement of EU institutions and all countries concerned, is
important to ensure and foster trust in the implementation of those rules. Still, 35.97%
tend to agree to this statement.
6,37% of the replies (10 replies) were received by business associations andcompany/business organisations. Despite the considerable small number of replies,
these reflect a quite uniform point of view. Business associations and company/businessorganisations see the Schengen Area very positive. All participants fully agreed that the
Schengen Area is one of the EU’s greatest achievements and that the Schengen Area isgood for economic/social reasons. Still 90% fully agree that the Schengen Area has moreadvantages than disadvantages (the remaining 10% tend to agree). While all businessassociations and company/business organisations travel for professional reasons within
the Schengen Area, the share of commuters for business or study reasons is with 40%
more than twice as high as for persons responding in private capacity.
All business associations and company/business organisations see a need for reinforced
action in removing difficulties in crossing the internal borders between the
Schengen States, in particular by lifting long lasting reintroductions of border controls atinternal borders, 80% for better coordination in crisis situations, including pandemics,
and 70% for a reinforced monitoring of the Schengen rules. Overall, the demand foraction lies clearly above the one from private persons. Furthermore, contrarily to private
persons, the responding businesses attributed greater importance to the removal of longterm difficulties in crossing internal borders as to the crisis coordination at EU level.
The impact of the reintroduced border controls hit businesses harder than citizens intheir private capacity with almost all business associations and company/businessorganisations having suffered either from delays when transporting goods acrossthe borders (60%) or from other reasons (60%). 50% of the participants had to wait
and were impacted by delayed trips. Moreover, the share of participants being hesitant totravel or deciding not to travel, was with 80% more than twice as high for businessassociations and company/business organisations as for private persons. Furthermore,
70% of the participating business associations and company/business organisations were
unsure regarding the documents needed to cross the border. The huge impact of theborder controls on businesses is reflected by the business associations’ andcompany/business organisations’ view on alternative measures: 80% would favour nonsystematic alternatives to border checks and no business association or company/businessorganisation would oppose automated control measures in the internal border areas,
provided they are reasonably regulated by law fully respecting data protection rules..
Furthermore, 90% of the business associations and company/business organisations
considered the coordination at EU-level of measures applicable at the external bordersof the EU in response to common threats such as a pandemic as beneficial.
While only 40% of the business associations and company/business organisations fully
agree on the importance of the monitoring of the respect of common rules and standards
across the Schengen area for the trust in the implementation of these rules and standards,
the remaining majority still tends to agree.
The data received by the public authorities, trade unions, the academic/research
institution and the NGO mirrored this positive image of Schengen. Due to the very low

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number of participants (1 to 4, which equals between 0.66% and 2.55% of all replies) andthe subsequent lack of comparable data, the data received is not analysed in detail.
Overall, the public consultation shows:
-

-

-

-

The Schengen Area is in general perceived very positively, as well by EU andnon-EU citizens as by businesses and other stakeholders. Businesses tend to see
the advantages as well as the remaining challenges of Schengen more clearly thanprivate persons.
Businesses are more impacted by internal border controls than private
persons with almost all responding business having suffered from theconsequences of internal border controls. To some extent, this might also belinked to a greater share of businesses relying on cross-border commuting (40%).
While business are very open to the use of alternative measures to bordercontrol, such as the use of new technologies, a considerable share of private
persons (21.58% of all participants in private capacity and even 25.25% of
EU citizens) is concerned about the impact such measures would have on
their privacy.
Particularly businesses see a clear need for development of the Schengenframework. All consulted businesses hold that more action is required
regarding the lifting of long-lasting border controls (vs. 62.63% of private
persons). While private persons attributed more importance to the coordination ofcrisis response, e.g. in pandemics, the majority (62.63%) still considered that
there is a need of reinforced action to remove barriers to border crossings at theinternal borders.

Outside the direct scope of the public consultation, but in response to it, twocontributions were received by email.
Airport Council International (ACI) Europe considers that a revision of the Schengen
Borders should give the Commission the necessary tools and powers to ensure that
restrictions of the free movement of persons are only introduced as last resort measure,are limited in time and proportionate. More specifically, ACI Europe points at theadditional costs of conducting separated border controls for passengers on Schengeninternal flights, as it is currently required, highlighting that airports are not designed toaccommodate such a second category of border checks on a permanent basis. Therefore,
ACI Europe suggests that a legislative amendment of the Schengen Borders Code should,
in the case of reintroduced internal border control, allow passengers on Schengeninternal flights to follow a common flow and common border control together withpassengers on international flights.
The Fragomen Europe Immigration Taskforce points at difficulties, businesstravellers face when entering the Schengen Area and suggests the introduction of unified
visa application procedures, additional guidance by the EU regarding the exemption ofbusiness travellers from Covis-19 related travel restrictions, particularly the introductionof a uniform confirmation document for business travel, which should reduce the

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discretionary power by the Member States’ consulates and border guards to establish if abusiness trip is considered as essential travel, and the introduction of a simplified shortterm visa application process for frequent business travellers into the Schengen Area.
These suggestions concern the visa policy as well as the modalities regarding restrictionsof the freedom of movement under Union law, which are not subject to the considered
options for the development of the Schengen Borders Code.

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ANNEX 3: WHO IS AFFECTED AND HOW?
1.

PRACTICAL IMPLICATIONS OF THE INITIATIVE

The initiative concerns managing exceptional and crisis situations. Therefore, theproposal has a capacity to affect the following stakeholders:–––

Member States (Public Authorities, Border Guards, Police);
EU institutions (European Parliament, Council and Commission);
EU citizens and other persons residing in the Schengen area, in particular in the
cross-borders regions;–
Carriers
The immediate effect of the proposal could be visible in the cross-border areas, should
the national authorities decide to lift current checks at internal borders.
2.

SUMMARY OF COSTS AND BENEFITS
I. Overview of Benefits (total for all provisions) – Preferred Option

Description

AmountComments

Direct benefits
Reducing hurdles to Citizens and other authorised persons can This will allow for truly achieving
persons and goods move freely in the Schengen area one of the objectives set out in themoving in the Schengen without unnecessary hurdles without Treaty on European Union:
area
being subject to the long-lasting borderchecks in response to abstract threat or Article 3(2) The Union shall offer its
border checks reintroduced as a first aid citizens an area of freedom, security
and justice without internal frontiers,
measurein which the free movement of
Exact data not available –benefits largely persons is ensured in conjunction
correspond to savings in terms of time with appropriate measures withspent when crossing the internal borders respect to external border controls,
asylum, immigration and theprevention and combating of crime
Indirect benefits
Reviving cross-border Exact data not available
labour market

Benefits will result from saving oftime for the cross-border workers,
reduction of risk of absenteeism andavoiding that workers get reluctant toseekcross-border
employment(business perspective)

Reviving Single Market Exact data not available

Undisturbed supply chains, taking
full potential of cross-border

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exchange and consumption
Limiting
thecosts Exact data not available
related to the lack ofpredictability in thecrisis situation

Business and self-employed may
expect minimum standards andcommon rules to apply also in thecrisis situation.
Carriers may expect uniform rules
applicable with regard to carriers
liability at the external borders in
relation to the application of travel
restriction for non-essential travel tothe EU by the third country nationals

II. Overview of costs – Preferred option
Citizens/Consumers
One-off

Businesses

Recurrent

One-off

Administrations

Recurrent

OneoffRecurrent

DirectContingency
planning
for costs
Schengen(including
the Indirectrules
on costs
mitigating
measures)

-

-

-

-

-

-

-

-

-

-

-

-

Reintroductionsof border checks
Directare truly lastcosts
resort measure;othercompensatory
measuresare Indirect
privileged
costs

-

-

-

-

-

Costs
of
preparation ofrisk assessment
andregularreporting

-

-

-

-

-

DirectUniform
applicationof costs
travelrestrictionsat Indirecttheexternal costs

-

-

-

-

-

-

-

-

-

Limitation of prospects fortourist

-

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destinations
relyingonthird country
nationals

borders

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ANNEX 4: RELEVANT INPUTS AND STUDIES
CM2011Meijers Committee Recommendations for a new Strategy on the Futureof Schengen November 2020
Ref. Ares(2020)720051 6 - 30/11/2020
The European Commission emphasizes in its new Pact on Migration and Asylum that
effective management of EU external borders is a key element of a Schengen area
without internal borders. To ensure a 'well-functioning Schengen area', the Commission
announces, in section 4.4, the presentation of a new Strategy on the future of Schengen,including 'initiatives for a stronger and more complete Schengen'. In this contribution, theMeijers Committee focuses on four subjects which need further development in this new
strategy:
1.
2.
3.
4.

The temporary reintroduction of internal border controls.
The Schengen evaluation mechanism.
Controls in the territory.
The enlargement of the Schengen area.

Ref. 1. Temporary reintroduction of internal border controls
In response to refugee and migration flows in 2015 and 2016, but also in reaction toterrorist attacks in several European cities, Members States have repeatedly reintroduced
internal border controls, with reference to the provisions of the Schengen Borders Code
(SBC). Since 2015, these controls have been extended several times. This has resulted ina quasi-permanent reintroduction of controls at parts of the internal borders. In 2020, the
COVID-19 pandemic triggered both the reintroduction of new internal border controls, aswell as the prolongation of existing internal border controls.
This practice undermines the essence of the Schengen space as an area without internalborder controls, provided for in Article 3(2) TEU, Article 67(2) TFEU and the provisionsof Protocol (No 19) on the Schengen acquis. It is also in clear contravention of theprovisions of the SBC that regulate in secondary law the exceptions to the absence ofborder controls. These provisions emphasize that the reintroduction of internal bordercontrols is only allowed as a measure of last resort and of a temporary nature and if
necessary to counter threats to public policy or internal security, respecting the principle
of proportionality.
This note is part of a series of the Meijers Committee commenting on the Commission's
New Pact on Migration and Asylum, COM(2020) 609 final. Please find all our comments
on www.commissie-meiiers.nl.
Notwithstanding legitimate concerns of the Member States for public policy or internal
security, and more recently public health, the extent and duration of the reintroduction ofinternal border controls is neither proportionate nor necessary. In addition, the Court ofJustice of the European Union (CJEU) has clearly held that a Member State cannot
simply invoke Article 72 TFEU, without proving that recourse to that article is necessary
for the exercise of its responsibilities for the maintenance of law and order or internal
security. With respect to Article 4(2) TEU, the CJEU has held that the reference tonational security goes beyond objectives of combating crime in general, even serious

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crime, and of safeguarding public security. Threats to national security can be
distinguished, by their nature and particular seriousness, from the general risk thattensions or disturbances, even of a serious nature, affecting public security will arise.
The Meijers Committee regrets that there are no (publicly) available reports informing
the Council and Parliament, and no Commission opinions on the reinstatement of internalborder controls, as required under Article 33 SBC. The Commission should provide thenecessary information which allows other Member States, the EU institutions and thegeneral public to monitor compliance of the reinstatement of controls at the internalborders with Union law.
Furthermore, the Meijers Committee regrets the lack of enforcement action by theCommission. This has resulted in legal uncertainty for Union citizens and third-country
nationals alike, as well for national administrative and judicial authorities. This isevidenced by the preliminary reference of the Austrian Landesverwaltungsgericht
Steiermark on the reintroduction of controls at the Austrian internal borders. The Meijers
Committee stresses that the enforcement of EU law in a core area of European
integration is too important to be left to private persons in individual cases.
Finally, in relation to the recent reinstatement of border controls by different Member
States in response to the COVID-19 pandemic, the Meijers Committee notes that the
SBC lacks an explicit legal basis for the reintroduction of border controls on the groundof public health.
In light of the above, the Meijers Committee urges that a new Strategy on the future of
Schengen clarifies the rules for the reinstatement of controls at the internal borders andamends the SBC to this effect.
Recommendations•
Exhaustively regulate the rules and procedures for the temporary reintroductionof internal border controls.
•
List and define in more detail the possible grounds for the reintroduction ofinternal border controls.
•
Add 'public health' as a ground for the reintroduction of internal border controls,
applying the definition as provided in Article 2(21) SBC and referring to the WHO list of
infectious or contagious parasitic diseases.
•
Provide for a special procedure in case of prolonged threats to public order,
national security or public health, and to include in this procedure:- sufficient safeguards to ensure that the reintroduction of internal border controls does
not go beyond what is absolutely necessary;- the obligation for Member States to submit, after an initial period of reintroduction ofborder controls, a motivated request to the Commission for further prolongation;

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- the obligation for a Member State to, after a fixed number of prolongations of internalborder controls, submit a motivated request to the Council for further prolongation,subject to (reverse) qualified majority voting.
•
Clearly state whether and if so under what conditions different grounds for the
reintroduction of internal border controls may be applied cumulatively and consecutively.
•
Clearly define the monitoring and information obligation of the Commission andMember States concerned, including a clear time frame.
•
Make clear that controls within the territory of a Member State are to be given
priority over the reinstatement of internal border checks.
Ref.2 Schengen Evaluation Mechanism
The Meijers Committee welcomes the further development of the Schengen Evaluation
Mechanism (SEM) to ensure the correct and full implementation of Schengen rules andto strengthen mutual trust between Member States. Effective implementation andenforcement of the Schengen rules is key to the confidence and success of the area
without internal border controls.
The Meijers Committee encourages the Commission to make the results of the review ofCouncil Regulation (EU) No 1053/2013 based on Article 22 of that Regulation publicly
available. Already at this stage, based on the experience in practice with the current
mechanism, it wishes to put forward a number of suggestions for improvement.
Recommendations•
Include a general evaluation per Member State of compliance with the Schengenacquis rather than on selected topics only.
•
Improve the overall transparency of the SEM, with due respect for sensitive
information.
•
Incorporate fundamental rights compliance and involve the Fundamental Rights
Agency.
•Enable the Commission to determine the composition of the evaluation teams.

•
Include EU experts from relevant bodies and agencies in evaluation teams, inaddition to Commission and Member State experts, such as Frontex, as well as anindependent expert appointed by the European Parliament.
•
Allow evaluation teams to be allowed to pay unannounced on-site visits toMember States, instead of having to give a 24-hour notice as is currently required.
•
Improve the follow-up to the findings of the SEM by providing for shorter andclearer deadlines on the evaluators and the Member States being evaluated.
•
Empower the Commission rather than the Council to adopt recommendations on
the basis of evaluations.

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•
Facilitate access of individual Members of the European Parliament to theevaluation reports. Ensure that the Commission informs both the Council and theEuropean Parliament of the findings of the evaluation teams, as well therecommendations based thereon.
•
Ensure that the Commission makes the findings of the evaluation teams, as wellas the recommendations based thereon, publicly available, with due respect for sensitive
information.
Ref. 3 Checks within the territory
Both in the New Pact on Migration and Asylum and in the Communication on theapproach for restoring the freedom of movement and lifting internal border controls in
relation to COVID-19, the Commission points at the use of 'controls based on risk
assessment or local police measures' as a viable alternative to internal border controls. 130
It also refers to the use of 'new technology and smart use of IT interoperability' to makecontrols 'less intrusive'.131 These proposals are in line with earlier recommendations andguidelines.132
The Meijers Committee emphasizes that the use of police checks and new technologies
should not result in restrictions to travel for EU citizens and third-country nationals
within the Schengen territory, since this would undermine the very goal of the Schengencooperation: seamless travel within an area without internal border controls.
Interoperability, or the interlinked usage of EU large-scale databases (SIS, Eurodac, VIS,
EES, ETIAS and ECRIS-TCN) and the access to law enforcement authorities toadministrative data on third-country nationals, coupled to new technologies of biometrics
and surveillance, may result in a 'multiplication of borders', meaning that persons may becontrolled at any time at any place: at the external borders, but also within the territory.
Furthermore, the application of police controls within the Schengen area should be in fullcompliance with national and European data protection standards and non-discrimination
legislation. The discretionary powers of police and immigration authorities inside theterritory and within internal border areas, combined with the possibility to checkaforementioned data systems, creates a risk that third-country nationals or thoseconsidered to be, putatively or by Union law,133 will be more often stopped for
identification and comparison of their (biometric) data. Consequently, they may be
confronted with disproportionate or arbitrary barriers of entry, expulsion, or law
enforcement measures. Research carried out in the Dutch border area identified a clear

130

COM(2020) 609 final, p. 15 and C(2020) 3250 final, p. 10.
COM(2020) 609 final, ibid
132
Recommendation (EU) 2017/820 of 12 May 2017 and Annex to COM(2012) 230 final.
133This risk will increase if the EU maintains or introduces rules similar to Article 2 of Regulation
2019/816, stating that certain Union citizens should be treated as third-country nationals, see our earlier
comments CM1710, CM1711 and CM1812, available at www.commissie-meiiers.nl. See also Bast, J. et al,
Human Rights Challenges to European Migration Policy (REMAP study), October 2020, p. 108,
http://www.migrationundmenschenrechte.de/kontext/controllers/document.php/19.c/9/52276f.pdf.
131

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risk of discrimination and racial profiling by police and border guards when controllingindividuals during mobile spot checks.134
In earlier comments, the Meijers Committee has expressed its concerns with regard to theuse and possible discriminatory effects of large-scale databases such as SIS, VIS, ETIAS
and ECRIS-TCN, and the framework of interoperability, not only at the external borders
but also within the Schengen territory.135 In this regard, the Meijers Committee refers to
the report on the use of digital border technologies by the UN Special Rapporteur oncontemporary forms of racism, racial discrimination, xenophobia and related intolerance
published in November 2020. In this report, the Rapporteur expresses her concerns about
the discriminatory and exclusionary effects of these digital technologies without
necessary human rights safeguards. The report also describes how these measures are
deployed to advance existing racially discriminatory and xenophobic ideologies, in partdue to wide-spread perception that migrants and refugees are to be considered as per sethreats to security.136
The CJEU has in a series of cases circumscribed the discretionary power of the Member
States to exercise border controls in its territory.137 Nevertheless, questions remain as
regards the role of private companies in carrying out checks on behalf of the Member
States. In the Touring Tours case these checks were equated with controls within theMember States. However, this does not do justice to the specificity of these controls,
being carried out by private operators in another Member State than the one thatprescribes these controls.
The Meijers Committee recommends a better regulation and delimitation of police
powers of the Member States in border areas. Importantly, these controls should be
carried out in full compliance with EU law, including respect for fundamental rights andfreedoms. To this effect the Commission should submit proposals, either of a legislative
nature or in the form of guidelines.
Recommendations•
Further define the notion of 'checks within the territory', to delineate them fromborder controls.
•
Further regulate the conditions under which 'checks within the territory' can takeplace in border areas.

134

Van der Woude, M. and Van der Leun, J., 'Crimmigration checks in the internal border areas of the EU:
finding the discretion that matters', European Journal of Criminology 2017 14 (1), p. 27-45.
135
See our earlier comments CM1802 (interoperability) and CM1902 (ECRIS-TCN), available atwww.commissie- meiiers.nl.
136
UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, Report A/75/590, November 2020, https://www.ohchr.org/EN/newyork/Documents/A-75-590AUV.docx
137
Melki & Abeli, joined cases C-188/10 and C-189/10; Adil, case C-278/12 PPU and A. (Europabrücke),case C- 9/16.

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•
Specify that, to the extent to which police controls take place in border areas andare aimed at the prevention of irregular migration or illegal border crossing, the Charterof Fundamental Rights applies.
•
Codify the guidance provided by the case law of the CJEU and specify moreclearly what is required in terms of intensity, frequency and selectivity to distinguishpolice controls from border controls.
•
Regulate the position of private companies when obliged to carry out controls
within the territory on behalf of the Member States.
•
Prevent racial profiling, invasive checks, and the abuse of discretion by requiring
national authorities to develop guidelines, training programs, accessible complaint
mechanisms and a system of consistent monitoring and evaluation of controls taking
place within border areas.
•
Ensure access to effective judicial protection for individuals with regard toactions and decision-making based on foreign SIS alerts or risk assessment, but also
information as stored in other EU databases, as Eurodac, VIS, ETIAS, and ECRIS-TCN,
not only at the external borders but also within the territory, including internal borderareas.
•
Ensure that any use of technological means complies fully with applicablenational and EU data protection and non-discrimination legislation.
4. Enlargement of the Schengen Area
A new Strategy on the future of Schengen will need to address the position of Schengencandidate countries, i.e. those Member States that have acceded to the European Union,
but in relation to whom there has not yet been a Council Decision taken to lift internalborder checks.
Already, the Schengen evaluation mechanism plays an important role in the assessmentof the readiness of the Schengen candidate countries. This role could be reinforced.
Currently there are four Member States that have been declared technically ready by theCommission to join the Schengen area. A number of Member States has however
blocked the adoption of a unanimous Council Decision that would allow for fullaccession to the Schengen area, based on political concerns in relation to the respect for
the rule of law and corruption in the Member States concerned.
The Meijers Committee would like to point out that despite resolutions from theEuropean Parliament calling for an end to this situation, the exclusion of these countries
from the Schengen area continues to this very day.138 The extended stay of thesecountries in the 'Schengen waiting room' has a number of undesirable consequences.

138

European Parliament Resolution of 11 December 2018 (P8_TA(2018)0497) and of 13 October 2011
(P7_TA(2011)0443).

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The current situation leads to a de facto dual external border, a duplication of bordercontrols, and the primacy of security measures over facilitating borderless travel in
Europe. Schengen candidate countries have increasingly been allowed to participate in
Schengen developing measures, notably the interoperability initiative, without benefittingfrom the lifting of internal border checks. This means that a number of Member States,
their citizens and the third-country national legally present in their territory, are denied
the benefits of the objective laid down in primary law, namely the establishment of anarea without internal borders.
Schengen candidate countries guard their external borders in line with EU standards,
including the relevant parts of the SBC, and are assisted in doing so by the European
Border and Coast Guard Agency (Frontex). The CJEU has made it clear that participation
in measures related to the external borders presupposes participation in the underlying
Schengen rules, more specifically the lifting of checks at the internal borders.
Finally, this situation creates considerable uncertainty as to the legal regime that is
applicable at the external borders of the Member States that fully participate in Schengenand border a Schengen candidate country, given that internal and external borders havebeen defined as mutually exclusive.
Recommendations
For this reason, the Meijers Committee recommends that a new Strategy on the future of
Schengen includes:•
Clear rules governing the accession to the Schengen area once a candidate
Member State has acceded, comparable to the Copenhagen criteria for accession to theEuropean Union itself.
•
A path towards accession for the current Schengen candidate countries, based
upon binding rules and strict conditionality.
•
A clearly defined role for a revised Schengen evaluation mechanism and thevulnerability mechanism under the European Border and Coast Guard Regulation(Article 13) in order to access independently and objectively fulfillment of the criteria foraccession to Schengen.
•
Clarification in the SBC as to the applicable legal regime at the at the externalborders of a Member State fully participating in Schengen and the external borders of a
Schengen candidate country.
5. Concluding remarks on recent developments
Finally, the Meijers Committee would like to briefly comment on the call put forward inNovember 2020 by the French President Macron for a reform of the Schengen area andcloser cooperation in the area of internal security.
The Schengen flanking measures have always had a dual nature. On the one hand they
comprise measures regulating visa, borders, migration and asylum, on the other they
concern police cooperation and judicial cooperation in criminal matters. Although bothdeserve to be included in a new Strategy for the future of Schengen, it should be

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emphasized that the primary objective of both types of flanking measures has always
been to facilitate free travel and lift internal border controls.
Although Member States may have legitimate concerns of public order and national
security, it is highly doubtful that these can be addressed through the return of internalborder controls. Border controls have a highly symbolic value, but are seldomly the mosteffective means in the fight against terrorism and organised crime, as the recent terror
attacks taking place in Vienna and Paris have sadly shown. These attacks took place
despite the existence of controls at the internal borders. In this regard much moreemphasis should be placed on effective cooperation between law enforcement staff andthe accurate and timely exchange of information, which, however should at all times
respect the basic principles of criminal justice and fundamental rights.
As regards the call for a reinforcement of the external borders, the Meijers Committee
recalls that a recent amendment to the founding Regulation of Frontex has alreadysignificantly reinforced the powers of this agency in the field of border management andreturn. It is submitted that all efforts should be on the implementation of this new
mandate, and that no further legislative changes should be proposed before a thoroughevaluation of the new legal framework has been carried out.
Costs of non-Schengen: Directorate-General for Internal Policies Policy Department A:
Economic and Scientific Policy, European Parliamentary Research Service European
Added Value Unit, PE 578.974-May 2016: “Cost of non-Schengen: the impact of bordercontrols within Schengen on the Single Market”, requested by the European Parliament's
Committee on Internal Market and Consumer Protection.

IPOL_STU(2016)5789
74_EN.pdf

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ANNEX 5: CONCLUSIONS OF THE CHAIR – SCHENGEN FORUM 30 NOVEMBER 2020
Schengen is one of the biggest achievements of European integration and is cherished by
European citizens. Schengen has been seriously put to the test this year in particular andMember States have the responsibility to rebuild trust in the area of freedom, security andjustice and ensure that citizens can fully reap the benefits. A strong Schengen area isessential for the well functioning of the internal market and for the post-Covid economic
recovery. The following six conclusions can be drawn from the 1st Schengen Forum:
1. The Schengen Forum highlighted the need for joint action in a number of areas tostrengthen the political and operational governance of the Schengen area so as tomake it more efficient, more resilient and reinforce mutual trust. Targeted technicalconsultations will take place over the coming months in order to further deepen theissues raised during the Forum and a 2nd Schengen Forum will be organised in
Spring 2021, ahead of the adoption by the Commission of a new Schengen Strategy.
2. On the specific issue of external borders, the Forum discussions highlighted theneed to focus on the implementation of 1/ the new IT-architecture andinteroperability of the external border management systems; and 2/ the standing
corps of the European Border and Coast Guard. The implementation of both theseelements requires strong political support as well as adequate human and financial
resources. There is also a need to reinforce procedures to ensure that nobody enters
the EU territory without being checked.
3. Concerning the Schengen evaluation mechanism, the importance of increasing its
effectiveness and efficiency was noted so as to bring concrete improvements on the
ground and increase trust. The Commission’s five year report, the study recently
published by the European Parliament and the outcomes of the Forum will all feed
into the forthcoming legislative initiative to revise the legal framework.
4. As regards crisis management, we need a contingency plan to neutralise or at least
limit the risk that possible future crises may again disrupt the area of free movement.
It is important to react in a quick and coordinated manner whenever a serious crisis
calls for it. The EU needs to have strong rules and procedures in place to handle suchsituations.
5. As regards controls at internal borders, the Forum underlined that these must be
truly measures of last resort. Existing controls need to be lifted as soon as possible.
In order to do so successfully, current alternative measures should be reinforced
and additional ones should be considered: reinforcing police cooperation in theUnion and exchanging relevant data between law enforcement authorities were someof the key measures mentioned. The best use of new technologies must be ensured
for the protection of our citizens and for the facilitation of travel. Existing
technologies should be applied to their full and additional joint work in the area of

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security research is desirable. Technologies must of course be managed in atransparent manner and in a manner compatible with data protection rules.
6. The EU should update its legal framework which is today no longer fully fit for
purpose. The current legal rules applicable to the management of the external borders
and to the temporary reintroduction of controls at the internal borders should be
reviewed taking into account the lessons learnt. A legislative initiative revising the
Schengen Borders Code will be presented in this respect.

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ANNEX 6: LIST OF REINTRODUCED BORDER CHECKS AT INTERNAL BORDERS
Member States’ notifications of the temporary reintroductionof border control at internal borders
pursuant to Article 25 and 28 et seq. of the Schengen Borders Code
NB

Member State

Duration

Reasons/Scope

293 Denmark12/05/202111/11/2021

Terrorist threats, organized criminality threats, Coronavirus
COVID-19; to be determined but may concern all internalborders

292 Germany

12/05/202111/11/2021

Secondary movements, situation at the external borders; landborder with Austria

291 Austria

12/05/202111/11/2021

Secondary movements, risk related to terrorists and organizedcrime, situation at the external borders; land borders with
Hungary and with Slovenia

290 Norway

11/04/202110/05/2021

Coronavirus COVID-19; all internal borders

289 Hungary

08/04/202118/04/2021

Coronavirus COVID-19; all internal borders

288 Portugal

01/04/202115/04/2021

Coronavirus COVID-19; internal border with Spain

287 France

01/05/202131/10/2021

Continuous terrorist threat, secondary
Coronavirus COVID-19; all internal borders

286 Spain

06/04/202116/04/2021

Coronavirus COVID-19; land border with Portugal

285 Germany

01/04/202114/04/2021

Coronavirus COVID-19; internal borders with the Czech
Republic

284 Belgium

02/04/202118/04/2021

Coronavirus COVID-19; all internal borders

283 Finland

01/04/202130/04/2021

Coronavirus COVID-19; all internal borders except the borderwith Iceland

282 Iceland

28/03/202116/04/2021

Coronavirus COVID-19; all internal borders

EN90

movements,EN281 Hungary

29/03/202107/04/2021

Coronavirus COVID-19; all internal borders

280 Austria

30/03/202128/04/2021

Coronavirus COVID-19; borders with the Slovak Republic
and the Czech Republic

279 Hungary

22/03/202128/03/2021

Coronavirus COVID-19; all internal borders

278 Iceland

18/03/202127/03/2021

Coronavirus COVID-19; all internal borders

277 Belgium

27/03/202101/04/2021

Coronavirus COVID-19; all internal borders

276 Belgium

18/03/202126/03/2021

Coronavirus COVID-19; all internal borders

275 Germany

18/03/202131/03/2021

Coronavirus COVID-19; land and air border with the Czech
Republic, air border with Austria

274 Portugal

17/03/202131/03/2021

Coronavirus COVID-19; internal border with Spain

273 Norway

12/03/202110/04/2021

Coronavirus COVID-19; all internal borders

272 Spain

16/03/202106/04/2021

Coronavirus COVID-19; land border with Portugal

271 Hungary

16/03/202121/03/2021

Coronavirus COVID-19; all internal borders

270 Finland

19/03/202117/04/2021

Coronavirus COVID-19; all internal borders except the borderwith Iceland

267 Germany

04/03/202117/03/2021

Coronavirus COVID-19; land and air border with the Czech
Republic, air border with Austria

266 Portugal

02/03/202116/03/2021

Coronavirus COVID-19; internal border with Spain

265 Belgium

26/02/202117/03/2021

Coronavirus COVID-19; all internal borders

264 Hungary

28/02/202115/03/2021

Coronavirus COVID-19; all internal borders

263 Spain

01/03/202116/03/2021

Coronavirus COVID-19; land border with Portugal

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262 Austria

28/02/202129/03/2021

Coronavirus COVID-19; borders with the Slovak Republic
and the Czech Republic

261 Germany

24/02/202103/03/2021

Coronavirus COVID-19; land and air border with the Czech
Republic, air border with Austria

260 Finland

22/02/202118/03/2021

Coronavirus COVID-19; all internal borders except the borderwith Iceland

259 Portugal

10/02/202101/03/2021

Coronavirus COVID-19; internal border with Spain

258 Germany

14/02/202123/02/2021

Coronavirus COVID-19; land and air border with the Czech
Republic, air border with Austria

257 Spain

10/02/202101/03/2021

Coronavirus COVID-19; land border with Portugal

256 Norway

10/02/202112/03/2021

Coronavirus COVID-19; all internal borders

255 Belgium

06/02/202125/02/2021

Coronavirus COVID-19; all internal borders

254 Austria

08/02/202127/02/2021

Coronavirus COVID-19; borders with the Slovak Republic
and the Czech Republic

253 Portugal

31/01/202109/02/2021

Coronavirus COVID-19; internal border with Spain

252 Spain

31/01/202110/02/2021

Coronavirus COVID-19; land border with Portugal

251 Hungary

29/01/202127/02/2021

Coronavirus COVID-19; all internal borders

250 Belgium

27/01/202105/02/2021

Coronavirus COVID-19; all internal borders

249 Finland

27/01/202125/02/2021

Coronavirus COVID-19; all internal borders, since 15/02/2021
all internal borders except the border with Iceland

248 Austria

19/01/202107/02/2021

Coronavirus COVID-19; borders with the Slovak Republic
and the Czech Republic

247 Austria

09/01/202118/01/2021

Coronavirus COVID-19; borders with the Slovak Republic
and the Czech Republic

246 Finland

11/01/202109/02/2021

Coronavirus COVID-19; all internal borders

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245 Hungary

30/12/202028/01/2021

Coronavirus COVID-19; all internal borders

244 Finland

14/12/202012/01/2021

Coronavirus COVID-19; all internal borders

243 Hungary

30/11/202029/12/2020

Coronavirus COVID-19; all internal borders

242 Finland

23/11/202013/12/2020

Coronavirus COVID-19; all internal borders

241 Austria

12/11/202011/05/2021

Secondary movements, risk related to terrorists and organizedcrime, situation at the external borders; land borders with
Hungary and with Slovenia

240 Norway

12/11/202009/02/2021

Coronavirus COVID-19; all internal borders

239 Finland

11/11/202022/11/2020

Coronavirus COVID-19; all internal borders

238 Hungary

31/10/202029/11/2020

Coronavirus COVID-19; all internal borders

237 Germany

12/11/202011/05/2021

Secondary movements, situation at the external borders; landborder with Austria

236 Norway

12/11/202011/05/2021

Terrorist threats, secondary movements; ports with ferry
connections to Denmark, Germany and Sweden

235 Norway

13/10/202011/11/2020

Coronavirus COVID-19; all internal borders

234 Denmark

12/11/202011/05/2021

Terrorist threats, organized criminality threats, Coronavirus
COVID-19; to be determined but may concern all internalborders

233 Sweden

12/11/202011/05/2021

Terrorist threats, shortcomings at the external borders; to be
determined but may concern all internal borders

232 France

01/11/202030/04/2020

Terrorist threats, situation at the external borders: all internalborders231 Finland

12/10/202010/11/2020

Coronavirus COVID-19; all internal borders

230 Finland

18/09/2020
18/10/2020

EN– Coronavirus COVID-19; borders with Lithuania and Poland

93

EN229 Finland

18/09/2020
18/10/2020– Coronavirus COVID-19; borders with Iceland, Norway,
Sweden, Germany, Slovakia, Estonia

228 Norway

14/9/2020
13/10/2020– Coronavirus COVID-19: all internal borders

227 Hungary

30/9/2020
30/10/2020– Coronavirus COVID-19: all internal borders

226 Finland

18/09/2020
18/10/2020– Coronavirus COVID-19; borders with Austria, Belgium,
Switzerland, Czech Republic, Denmark, Greece, Italy,
Hungary, Spain, France, Luxembourg, The Netherlands,
Malta, Portugal, Sweden, Slovenia

225 Hungary

01/09/202030/9/2020

Coronavirus COVID-19: to protect public health, all internalborders224 Finland

24/08/202018/09/2020

Coronavirus COVID-19; borders with Austria, Belgium;
Switzerland, Czech Republic, Germany, Denmark, Spain,
France, Iceland, Luxembourg, Malta, The Netherlands,
Norway, Poland, Portugal, Sweden, Slovenia

223 Norway

14/08/202013/09/2020

coronavirus COVID-19; internal air, land and sea borders

222 Lithuania

16/08/202014/09/2020

coronavirus COVID-19; internal air and sea borders

221 Finland

10/08/202008/09/2020

coronavirus COVID-19; borders with Spain, Luxembourg,
Portugal, Poland, France, Sweden, Czechia, Austria, Slovenia
and Switzerland

220 Finland

27/07/202025/08/2020

coronavirus COVID-19; borders with Spain, Luxembourg,
Portugal, Poland, France, Sweden, Czechia, Austria, Slovenia
and Switzerland

219 Lithuania

17/07/202015/08/2020

coronavirus COVID-19; internal air and sea borders

218 Finland

15/07/202011/08/2020

coronavirus COVID-19; borders with Spain, Luxembourg,
Portugal, Poland, France, Sweden and Czechia

217 Spain

21/06/202030/06/2020

coronavirus COVID-19; borders with Portugal

216 Portugal

16/06/202030/06/2020

coronavirus COVID-19; land border with Spain

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215 Germany

16/06/202021/06/2020

coronavirus COVID-19; air borders with Spain (lifting thecontrols reintroduced on the basis of coronavirus at theborders with Austria, Switzerland, France, Denmark and Italy
as of 15 June 2020)

214 Iceland

16/06/202022/06/2020

coronavirus COVID-19; all internal borders

213 Finland

15/06/202014/07/2020

coronavirus COVID-19; all internal borders, except borders
with Norway, Denmark, Iceland, Estonia, Latvia and
Lithuania

212 Lithuania

17/06/202016/07/2020

coronavirus COVID-19; internal air and sea borders (lifting
the border controls at the land border with Poland as of 12
June 2020)

211 Switzerland

09/06/202015/06/2020

coronavirus COVID-19; all internal air and land borders
except from borders with Liechtenstein

210 Czechia

14/06/202030/06/2020

coronavirus COVID-19; all internal air borders (lifting theborder controls at the internal land borders as of 5 June 2020)

209 Spain

08/06/202021/06/2020

coronavirus COVID-19; all internal borders

208 Iceland

04/06/202015/06/2020

coronavirus COVID-19; all internal borders

207 Belgium

09/06/202014/06/2020

coronavirus COVID-19; all internal borders

206 Austria

01/06/202015/06/2020

coronavirus COVID-19; land borders with Germany, Italy,
Switzerland, Liechtenstein, Slovakia and Czechia

205 Lithuania

01/06/202016/06/2020

coronavirus COVID-19; land border with Poland, sea borders,
air borders

204 Slovakia

28/05/202026/06/2020

coronavirus COVID-19, all internal borders

203 Spain

24/05/202007/06/2020

coronavirus COVID-19; all internal borders

202 Estonia

18/05/202016/06/2020

coronavirus COVID-19; internal air and sea borders (lifting
the border controls at the internal land borders as of 15 May
2020)

201 Iceland

14/05/202003/06/2020

coronavirus COVID-19; all internal borders

EN

95

EN

200 Germany

16/05/202015/06/2020

coronavirus COVID-19; land and air borders with Austria,
Switzerland, France, Denmark, Italy and Spain, sea borderwith Denmark;199 Portugal

15/05/202015/06/2020

coronavirus COVID-19; land border with Spain

198 Spain

15/05/202024/05/2020

coronavirus COVID-19; all internal sea and air borders

197 Poland

14/05/202012/06/2020

coronavirus COVID-19; land borders with Czechia, Slovakia,
Germany, Lithuania, sea borders, air borders

196 Slovakia

08/05/202027/05/2020

coronavirus COVID-19, all internal borders

195 Hungary

12/05/202011/11/2020

coronavirus COVID-19; all land and air borders

194 Spain

10/05/202024/05/2020

coronavirus COVID-19; all land borders

193 Finland

14/05/202014/06/2020

coronavirus COVID-19; all internal borders

192 Lithuania

14/05/202031/05/2020

coronavirus COVID-19; all internal borders

191 Czechia

14/05/202013/06/2020

coronavirus COVID-19; land borders with Germany andAustria, air borders

190 Austria

08/05/202031/05/2020

coronavirus COVID-19; land borders with Germany, Italy,
Switzerland, Liechtenstein, Slovakia and Czechia

189 Iceland

04/05/202015/05/2020

coronavirus COVID-19; all internal borders

188 Poland

04/05/202013/05/2020

coronavirus COVID-19; land borders with Czechia, Slovakia,
Germany, Lithuania, sea borders, air borders

187 Portugal

05/05/202015/05/2020

coronavirus COVID-19; land border with Spain

186 Germany

05/05/202015/05/2020

coronavirus COVID-19; land and air borders with Austria,
Switzerland, France, Luxembourg, Denmark, Italy and Spain,
sea border with Denmark

185 Czechia

24/04/202014/05/2020

coronavirus COVID-19; land borders with Germany andAustria, air borders

EN

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184 Switzerland

02/05/202008/06/2020

coronavirus COVID-19; all internal air and land borders
except from borders with Liechtenstein

183 Norway

05/05/202016/05/2020

coronavirus COVID-19; all internal borders

182 Belgium

08/05/202008/06/2020

coronavirus COVID-19; all internal borders

181 Spain

26/04/202010/05/2020

coronavirus COVID-19; all land borders

180 Hungary

01/05/202011/05/2020

coronavirus COVID-19; all land and air borders

179 Estonia

01/05/202017/05/2020

coronavirus COVID-19; all internal borders

178 Austria

28/04/202007/05/2020

coronavirus COVID-19; land borders with Germany, Italy,
Switzerland, Liechtenstein, Slovakia and Czechia

176 Lithuania

28/04/202014/05-2020

coronavirus COVID-19; all internal borders

175 Iceland

24/04/202004/05/2020

coronavirus COVID-19; all internal borders

174 Austria

12/05/202011/11/2020

secondary movements, risk related to terrorists and organizedcrime, situation at the external borders, risk of Coronavirus
causing additional migrant movements; land borders with
Hungary and with Slovenia.

173 Belgium

19/04/202008/05/2020

coronavirus COVID-19; all internal borders

172 Slovakia

17/04/202007/05/2020

coronavirus COVID-19, all internal borders

171 Germany

15/04/202005/05/2020

coronavirus COVID-19; internal land and air borders with
Austria, Switzerland, France, Luxembourg, Denmark, Italy
and Spain, sea border with Denmark12/05/202011/11/2020

secondary movements, situation at the external borders; landborder with Austria

15/04/202001/05/2020

coronavirus COVID-19; all internal borders

171 Estonia

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170 Portugal

15/04/202005/05-2020

coronavirus COVID-19; land border with Spain

169 Norway

15/04/202005/05/2020

coronavirus COVID-19; all internal borders

15/05/202013/08/2020

coronavirus COVID-19; all internal borders

12/05/202012/11/2020

terrorist threats, secondary movements; ports with ferry
connections with Denmark, Germany and Sweden;

168 Poland

14/04/202003/05/2020

coronavirus COVID-19; land borders with Czechia, Slovakia,
Germany, Lithuania, sea borders, air borders

167 Hungary

11/04/202001/05/2020

coronavirus COVID-19; all land and air borders

166 Slovakia

08/04/202017/04-2020

coronavirus COVID-19, all internal borders

165 Spain

11/04/202026/04/2020

coronavirus COVID-19; all land borders

164 Austria

10/04/202027/04/2020

coronavirus COVID-19; land borders with Czechia andSlovakia

163 Lithuania

13/04/202027/04/2020

coronavirus COVID-19; all internal borders

162 Switzerland

12/04/202002/05/2020

coronavirus COVID-19; all internal air and land borders
except from borders with Liechtenstein

161 Sweden

12/05/202012/11/2020

terrorist threats, shortcomings at the external borders;

12/05/202012/11/2020

coronavirus COVID-19 (to the extend necessary), terrorist
threats, organized criminality; all land, air and sea borders.

160 Denmark

to be determined but may concern all internal borders

After lifting the COVID-19 travel restrictions, the bordercontrols will be limited to the Danish land and sea borders
with Germany and Sweden (Øresundsforbindelsen).
159 Austria

08/04/202027/04/2020

coronavirus COVID-19; land borders with Germany, Italy,
Switzerland and Liechtenstein

158 Finland

14/04/202013/05/2020

coronavirus COVID-19; all internal borders

EN

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157 Switzerland

04/04/202024/04/2020

coronavirus COVID-19; all air borders except air borders with
Liechtenstein

156 Czechia

04/04/202024/04/2020

coronavirus COVID-19; land borders with Germany andAustria, air borders

155 France

01/05/202031/10/2020

continuous terrorist threat and the risk of terrorists using thevulnerability of States due to COVID-19 pandemics, support
to measures aiming at containing the spread of virus; allinternal borders

154 Belgium

30/03/202019/04/2020

coronavirus COVID-19; all internal borders

153 Portugal

26/03/202015/04/2020

coronavirus COVID-19; land border with Spain

152 Norway

26/03/202015/04/2020

coronavirus COVID-19; all internal borders

151 Spain

27/03/202011/04/2020

coronavirus COVID-19; all land borders

150 Germany

26/03/202015/04/2020

coronavirus COVID-19; internal land and air borders with
Austria, Switzerland, France, Luxembourg, Denmark, Italy
and Spain, sea border with Denmark

149 Poland

25/03/202013/04/2020

coronavirus COVID-19; land borders with Czechia, Slovakia,
Germany, Lithuania, sea borders, air borders

148 Lithuania

24/03/202013/04/2020

coronavirus COVID-19; all internal borders

147 Switzerland

25/03/202004/04/2020

coronavirus COVID-19; all air borders except air borders with
Liechtenstein

146 Estonia

27/03/202015/04/2020

coronavirus COVID-19; all internal borders

145 Switzerland

28/03/202017/04/2020

coronavirus COVID-19; air borders with Italy, France,
Germany, Austra and Spain

26/03/202015/04/2020

coronavirus COVID-19; land borders with France, Germany
and Austria

23/03/202012/04/2020

coronavirus COVID-19; land border with Italy

20/03/202030/03/2020

coronavirus COVID-19; all internal borders

142 Belgium

EN

99

EN

141 Germany

19/03/202029/03/2020

coronavirus COVID-19; air borders with Austria, Switzerland,
France, Luxembourg, Denmark, Italy and Spain, sea borders
with Denmark

140 Austria

18/03/202007/04-2020

coronavirus COVID-19; land borders with Germany, Italy,
Switzerland and Liechtenstein

139 Hungary

22/03/202011/04/2020

coronavirus COVID-19; land borders with Slovenia, Austriaand Slovakia, all air borders

138 Switzerland

18/03/202028/03/2020

coronavirus COVID-19; air borders with Spain, Italy, France,
Germany and Austria

137 Finland

19/03/202013/04/2020

coronavirus COVID-19; all internal borders

136 Spain

17/03/202026/03/2020

coronavirus COVID-19; all land borders

135 Portugal

16/03/202026/03/2020

coronavirus COVID-19; land border with Spain

134 Switzerland

16/03/202026/03/2020

coronavirus COVID-19; land borders with France, Germany
and Austria

133 Norway

16/03/202026/03/2020

coronavirus COVID-19; all internal borders

132 Estonia

17/03/202027/03/2020

coronavirus COVID-19; land borders with Latvia, air borders,sea borders

131 Czechia

18/03/202004/04/2020

coronavirus COVID-19; land borders with Germany andAustria, air borders

130 Germany

16/03/202026/03/2020

coronavirus COVID-19; land borders with
Luxembourg, France, Switzerland and Austria.

129 Lithuania

14/03/202024/03/2020

coronavirus COVID-19; all internal borders

128 Poland

15/03/202024/03/2020

coronavirus COVID-19; land borders with Czechia, Slovakia,
Germany, Lithuania, sea borders, air borders

127 Denmark

12/11/2019
12/05/2020– coronavirus COVID-19, terrorist threats, organized criminality
from Sweden; all land, air and sea borders

127 Austria

14/03/202024/04-2020

coronavirus COVID-19; land borders with Switzerland andLiechtenstein

EN

100

Denmark,EN

126 Switzerland

13/03/202023/03/2020

coronavirus COVID-19; land border with Italy

125 Czechia

14/03/202018/03/2020

coronavirus COVID-19; land borders with Austria andGermany, air borders

124 Hungary

12/03/202022/03/2020

coronavirus COVID-19; land borders with Austria andSlovenia

123 Austria

11/03/202021/03/2020

coronavirus COVID-19; land border with Italy

122 Spain

28/11/201913/12/2019

XXV United Nations Conference on Climate Change(COP25) in Madrid; Air borders (mainly Madrid andBarcelona airports), sea borders, mainly ports in northern
Spain, land border with France, keeping the usual authorizedcrossing points.

121 Norway

12/11/2019
12/05/2020– terrorist threats, secondary movements;

12/11/2019
12/05/2020– terrorist threats, shortcomings at the external borders;

12/11/2019
12/05/2020– terrorist threats, organized criminality from Sweden;

12/11/2019
12/05/2020– coronavirus COVID-19 (as of mid-March), secondary
movements, risk related to terrorists and organized crime,
situation at the external borders;

121 Sweden

120 Denmark

119 Austria

ports with ferry connections with Denmark, Germany andSweden;to be determined but may concern all internal borders;land border with Germany and with Sweden, ferry
connections to Germany and to Sweden, until 12 May 2020;

land borders with Hungary and with Slovenia;
118 Germany

117 France

12/11/2019
12/05/2020
31/10/201930/04/2020– secondary movements, situation at the external borders;land border with Austria;
coronavirus COVID-19 (as of beginning of March), persistentterrorist threat, upcoming high profile political event in Paris,
secondary movements;
all internal borders;

116 NorwayEN

12/05/201912/11/2019

security situation in Europe; all internal borders with an initial
focus on ferry connections with Denmark, Germany andSweden;101

EN115 Sweden

12/05/201912/11/2019

serious threat to public policy and internal security; to be
determined but may concern all internal borders;

114 Denmark12/05/201912/11/2019

severe threat to public order and internal security; internalborder with Germany (land and ports with ferry connections)

113 Austria

12/05/201912/11/2019

security situation in Europe and continuous significant
secondary movements; land borders with Hungary and withSlovenia;

112 Germany

12/05/201912/11/2019

migration and security policy; land border with Austria

111 France

01/05/201931/10/2019

Terrorist threats, situation at the external borders

110 Poland

10-16/02/2019

Ministerial to Promote a Future of Peace and Security in the
Middle East; all internal borders

109 Sweden

12/02/2019
11/05/2019– serious threat to public policy and internal security; all internalborders

108 Poland

22/11/2018
16/12/208- climate conference COPT 24, all internal borders

107 Austria

12/11/2018
11/05/2019-

106 Norway

12/11/2018
11/05/2019

security situation in Europe and threats resulting from the- continuous significant secondary movements; all internalborders with an initial focus on ferry connections with
Denmark, Germany and Sweden

105 Sweden

12/11/2018
11/02/2019- serious threat to public policy and internal security; all internalborders

104 Denmark

12/11/2018
11/05/2019-

103 Germany

12/11/2018
11/05/2019- threats resulting from the continuous significant secondary
movements; land border with Austria

102 France

01/11/2018
30/04/2019- Terrorist threats, situation at the external borders, upcoming
high level political meetings

101 Austria

17/09/201821/09/2018

informal meeting of the European Council in Salzburg; border
Salzburg and Upper Austria to Germany, border East Tyrol
and Carinthia to Italy, Salzburg Airport (all arriving flights)

ENsecurity situation in Europe and threats resulting from thecontinuous significant secondary movements; land borders
with Hungary and with Slovenia

persistent and severe threat to public order and internal
security; all internal borders with an initial focus on the landborder with Germany and ports with connection to Germany

102

EN

100 Austria

09/07/2018
13/07/2018–

informal meeting of Justice and Home Affairs Ministers in
Innsbruck; border Tyrol to Germany, border North Tyrol to
Italy, Innsbruck Airport (all arriving flights).

99

Norway12/05/2018–11/11/2018

security situation in Europe and threats resulting from thecontinuous significant secondary movements; all internalborders with an initial focus on ferry connections with
Denmark, Germany and Sweden

98

Sweden12/05/2018–11/11/2018

continuous serious threat to public policy and internal
security; all internal borders

97

Denmark

12/05/2018–11/11/2018

security situation in Europe and threats resulting from thecontinuous significant secondary movements; all internalborders with an initial focus on the land border with Germany
and ports with connection to Germany

96

Germany

12/05/2018–11/11/2018

security situation in Europe and threats resulting from thecontinuous significant secondary movements; land borderwith Austria

95

Austria

12/05/2018–11/11/2018

security situation in Europe and threats resulting from thecontinuous significant secondary movements; land borders
with Hungary and with Slovenia

94

France30/04/201830/10/2018

persistent terrorist threat; all internal borders

93

Sweden12-19/11/2017

Social Summit for Fair Jobs and Growth; Gothenburg
Landvetter Airport and Svinesund (Sweden/Norway border)

92

Norway12/11/2017
12/05/2018- security situation in Europe and threats resulting from thecontinuous significant secondary movements; ferry
connections with Denmark, Germany and Sweden

91

Sweden

12/11/2017
12/05/2018- security situation in Europe and threats resulting from thecontinuous significant secondary movements; selected
harbours in Police Regions South and West and at theÖresund Bridge;

90

Denmark

12/11/2017
12/05/2018- security situation in Europe and threats resulting from thecontinuous significant secondary movements; internal borderwith Germany;

89

Germany

12/11/2017
12/05/2018- security situation in Europe and threats resulting from thecontinuous significant secondary movements; land borderwith Austria and flight connections from Greece;

EN

103

EN

88

Austria

12/11/2017
12/05/2018- Security situation in Europe and threats resulting from thecontinuous significant secondary movements; land borders
with Hungary and with Slovenia

87

France01/11/2017
30/04/2018– Persistent terrorist threat

86

NorwayAll internal borders

26/08/201725/09/2017

UCI Road World Championship in Bergen
Bergen air border

85

Italy

10-30/05/2017

G7 Summit Taormina

84

Norway11/05/201711/11/2017

In line with Recommendation of the Council of 11 May 2017,
in the Norwegian ports with ferry connections to Denmark,Germany and Sweden

83

Sweden11/05/201711/11/2017

In line with Recommendation of the Council of 11 May 2017,
Swedish harbors in the Police Region South and West and at
the Öresund bridge

82

Denmark

11/05/201711/11/2017

In line with Recommendation of the Council of 11 May 2017,
Danish ports with ferry connections to Germany and at theDanish-German land border81

Germany

11/05/201711/11/2017

In line with Recommendation of the Council of 11 May 2017,
land border with Austria

80

Austria

11/05/201711/11/2017

In line with Recommendation of the Council of 11 May 2017,
land border with Slovenia and with Hungary

79

Norway11/02/201711/05/2017

In line with Recommendation of the Council of 7 February
2017, in the Norwegian ports with ferry connections to
Denmark, Germany and Sweden

78

Sweden11/02/201710/05/2017

In line with Recommendation of the Council of 7 February
2017, Swedish harbors in the Police Region South and Westand at the Öresund bridge

77

Denmark

11/02/201711/05/2017

In line with Recommendation of the Council of 7 February
2017, Danish ports with ferry connections to Germany and at
the Danish-German land border76

Germany

11/02/201711/05/2017

In line with Recommendation of the Council of 7 February
2017, land border with Austria

75

Austria

11/02/201711/05/2017

In line with Recommendation of the Council of 7 February
2017, land border with Slovenia and with Hungary

EN

104

EN

74

France27/01/201715/07/2017

Persistent terrorist threat - all internal borders

73

Malta

21/01/201709/02/2017

Malta Informal Summit and Joint Valetta Action Plan Meeting- air and sea borders

72

Norway12/11/2016

In line with Recommendation of the Council of 11 November
2016, in the Norwegian ports with ferry connections to
Denmark, Germany and Sweden

12/02/2017
71

Sweden

12/11/2016
12/02/2017

70

Denmark

12/11/2016
12/02/2017

69

Germany

12/11/2016
12/02/2017

68

67

Austria

France12/11/2016

In line with Recommendation of the Council of 11 November
2016, Swedish harbors in the Police Region South and Westand at the Öresund bridge
In line with Recommendation of the Council of 11 November
2016, Danish ports with ferry connections to Germany and at
the Danish-German land border
In line with Recommendation of the Council of 11 November
2016, land border with Austria

12/02/2017

In line with Recommendation of the Council of 11 November
2016, land border with Slovenia and with Hungary

26/07/201626/01/2017

In relation to the emergency state as introduced further to the
Nice attack
All internal borders

66

Poland04/07/2016
02/08/ 2016

- NATO Summit, World Youth Days and visit of PopeAll internal borders

65

Norway10/06/2016
12/11/ 2016

- In line with Recommendation of the Council of 12 May 2016
under Art.29 of the SBC Norwegian ports with ferry
connections to Denmark, Germany and Sweden.

64

Sweden08/06/2016
12/11/2016- In line with Recommendation of the Council of 12 May 2016
under Art.29 of the SBC Swedish harbours in the Police
Region South and West and at the Öresund bridge

63

Denmark

01/06/16
12/11/2016– In line with Recommendation of the Council of 12 May 2016
under Art.29 of the SBC Danish ports with ferry connections
to Germany and at the Danish-German land border

62

Austria

16/05/2016
12/11/2016- In line with Recommendation of the Council of 12 May 2016
under Art.29 of the SBC, land border with Slovenia and with
Hungary61

Germany

12/05/2016
12/11/2016- In line with Recommendation of the Council of 12 May 2016
under Art.29 of the SBC, land border with Austria

EN

105

EN

60

France27/05/2016 -EURO 2016, Tour de France

26/07/2016

All internal borders
Irregular migrants attempting to travel to UK - Border
between the Province of West-Vlaanderen and France

59

Belgium

23/02/201622/04/2016

58

Denmark

04/03/2016
02/06/2016- Big influx of persons seeking international protection

15/01/2016
11/06/2016- Continues threat of big influx of persons seeking international
protection

57

NorwayAll internal borders, with focus on ferries from Germany andland border with Germany.

All borders with focus on ports with ferry connections to
Norway via internal borders
56

Sweden10/01/201607/06/2016

Continuous big influx of persons seeking international
protection
All borders, with special focus on harbours in Police Region
South and Police Region West as well as on the Öresund
Bridge between Denmark and Sweden.

55

54

Denmark

France04/01/2016
03/03/2016- Unexpected migratory flow
All internal borders, with focus on ferries from Germany andland border with Germany.

14/12/201526/05/2016

In relation to the emergency state as introduced further toParis attacks
All internal borders

53

52

NorwayAustria

26/11/201515/01/2016

16/11/2015
16/05/2016

Unexpected migratory flow
All borders with focus on ports with ferry connections to
Norway via internal borders- Continuous big influx of persons seeking international
protection
All borders, with special focus on the land border withSlovenia, Hungary and Italy, subject to possible changes
The border can be crossed only at authorised border crossing
points (the list attached)

51

EN

Germany

14/11/2015
13/05/2016-

Continuous big influx of persons seeking international protection
All borders, with focus on the German-Austrian land border

106

EN

50

France13/1113/12/2015

21st UN Conference on Climate Change from 30 November to
11 December 2015,
internal land borders and air borders

49

48

Sweden

Malta

12/11
09/01/2016- Unprecedented influx of persons

9/11
31/12/2015- Valetta Conference on Migration and Commonwealth Heads
of Government Meeting

All borders, with special focus on harbours in Police Region
South and Police Region West as well as on the Öresund
Bridge between Denmark and Sweden.

Terrorist threat and smuggling of illegal migrants
Air and sea passanger terminal
47

Hungary

17-26/10/2015

Big influx of persons seeking international protection, landborders with Slovenia

4546

Slovenia

17-26/9;

Big influx of persons seeking international protection, landborders with Hungary

4144

Austria37-40

Germany

27/9-16/10/2015
16-25/9;
26/9-15/10;
16/10-4/11/2015;
5/11/201515/11/2015
13-22/09;
23/09-12/10;
13/10-1/11/2015;

Big influx of persons seeking international protection, allborders, focus on land borders with Italy, Hungary, Slovenia
and Slovakia

Big influx of persons seeking international protection, allborders with focus on Austrian land borders

2/11-13/11/2015
36

Germany

16/5-15/6/2015

G7 Summit

35

Estonia

31/8-3/9/2014

Visit of the US President

34

Norway24-31/7/2014

terrorist threat

33

Belgium

1-6/2014

G7 Summit

32

Netherlands

14-28/3/2014

Netherlands on 14-28 March 2014 Nuclear Security Summit
in the Hague

EN

107

EN

31

Poland8-23/11/2013

19th session of the Conference of the Parties to the UN
Framework Convention on Climate Change (UNFCCC), the9th session of the Conference of the Parties serving as the
Meeting of the Parties to the Kyoto Protocol and the 39th
Session of the Subsidiary Bodies in Warsaw (11-22/11/2013)
All internal borders

30

Norway3-12/12/2012

Nobel Peace Prize ceremony in Oslo (10/12/2012)29

Poland

4/6/20121/7/2012

Euro 2012 Football Championships (8/6-1/7/2012)
All internal borders

28

Spain

2-4/5/2012

Meeting of the Governing Council of the European Central
Bank in Barcelona

27

France24/10/201105/11/2011

G-20 meeting in Cannes (03-04/11/2011)26

Sweden22/07/2011,23h0023/07/2011,
09h00

Bomb explosion in Oslo and shooting on the island Utøya on– 22/07/201125

Norway22/07/2011,17h23-25/07/2011,
17h00

Bomb explosion in Oslo and shooting on the island Utøya on
22/07/201124

Austria

04/06/09/06/2011

World Economic Forum (07/06/-09/06/2011)23

Portugal

16/1120/11/2010

NATO Summit in Lisbon (19/11/-20/11)

22

Latvia24/0501/06/2010

NATO Parliamentary Assembly in Riga (28/05-01/06/2010).

21

France28/0502/06/2010

Franco-African Summit in Nice (31/05-01/06/2010).

20

Estonia

17-23/04/2010

Informal meeting of NATO Foreign Ministers in Tallinn (2223/04/2010).

19

Malta

5-18/04/2010

Visit of Pope Benedict XVI (17-18/04/2010)18

Denmark

1-18/12/2009

UN Climate Change Conference in Copenhagen (718/12/2009).
DK-DE and DK-SE borders

EN

108

EN

17

Norway27/11/2009–12/12/2009

Nobel Peace Prize Ceremony in Oslo (10/12/2009).

16

France27/09/2009

50th Anniversary of ETA.
FR-ES land borders, BCP border complex from Hendaye to
Arneguy (14 border crossing points).

15

Spain

26-27/09/2009

Celebration of ‘Basque Warrior day’ in the Basque Country
and Navarra (ES) and in Pyrénées-Orientales (FR)ES-FR land borders in the provinces of Guipuzcoa andNavarra

14

France19/09/2009, 13h Demonstration by Batasuna in Bayonne.
— 19:40
Five FR-ES border crossing points (highway A63, St Jacquesinternational bridge , Béhobie international bridge, Hendaye
station, port of Hendaye)

13

Italy

28/06/2009–15/07/2009

G8 Summit in L’Aquila (10-12/7/2009)30/03/2009–
5/04/2009

NATO Summit in Strasbourg (3-4/4/2009)

20/03/2009–
5/04/2009

NATO Summit in Strasbourg, Baden-Baden and Kehl (34/4/2009).

12

11

FranceGermany

Land, air and sea borders

Land and air borders with BE, LU, DE, CH, IT and ES

Land, air and sea borders
10

Iceland05-07/03/2009

Visit of MC Hells Angels to the Icelandic Motorcycle club inReykjavik.
Air borders (16 flights checked from SE, DK, NL, FR, DE,
and NO)

9

Finland

24/11/2008–
5/12/2008

Meeting of Council of Ministers of OSCE in Helsinki (45/12/2008).
Controls mainly at Helsinki-Vantaa airport and at ports of
Helsinki and Turku

8

France27/09/2008, 08h Demonstration on 27 September at 16:00 in Bayonne,— 18:45
supervised by Batasuna.
Five FR-ES border crossing points (Hendaye: highway A63,
St Jacques international bridge, Béhobie international bridge,
Hendaye station, port of Hendaye)

EN

109

EN

7

Austria

02/06/2008–
01/07/2008

European Football Championship EURO 2008, AT — CH
(7/6-29/6/2008).
Land and air borders

6

Iceland2–3/11/2007

Participation of MC Hells Angels at the inauguration of the
Icelandic Motorcycle club in Reykjavik (1-4/11/2007).
Air borders (14 flights checked from SE, DK, FI, DE and NO)

5

Germany

25/5–9/06/2007

G8
Summitin
Heiligendamm/Mecklenburg-Western
Pomerania (6-8/6/2007)
Land, air and sea borders

4

France

12–16/02/2007

Conference of Heads of States of Africa and France in Cannes(13-16/2/2007).
FR-IT border
notification)

3

Finland13–29/11/ 2006

(detailedinformation

provided

inthe

EUROMED meeting in Tampere.
Controls mainly at Helsinki-Vantaa, Turku and TamperePirkkala airports and the ports of Helsinki, Hanko and Turku,
FI-SE and FI-NO land borders

2

Finland

9–21/10/2006

Informal meeting of Heads of States and Government in Lahti.
Controls mainly at Helsinki-Vantaa, Turku and TamperePirkkala airports and the ports of Helsinki, Hanko and Turku,
FI-SE and FI-NO land borders

1

France21/10/2006, 08h Youth Days of radical young Basques in Saint-Pée-sur-Nivelle— 20:00
and demonstration organised in Bayonne by the support
committee of Philippe Bidart.
FR-ES land border (border crossing point on the highway A63
in Biriatou, St Jacques bridge, Béhobie bridge, Hendaye
station)* In line with the Schengen Borders Code in case of foreseeable events constituting aserious threat to the internal security and public policy the Member States may
reintroduce border control at internal borders for a period of up to 30 days or, if from theoutset it is known that the serious threat will persist for a period exceeding 30 days, forthe foreseeable duration of the threat.

EN

110

EN

ANNEX 7: FACTS ON THE EVOLUTION OF THREATS
Since 2015 (and until the outbreak of COVID-19), the six Schengen States which havereintroduced border controls (Austria, Germany, France, Sweden, Denmark and
Norway), have been referring to migration, terrorism and the situation at the externalborders have been the most frequently raised to in order to justify the continuous
prolongations of border checks at their internal borders by the six Schengen States
mentioned in Table 1. In view of the geopolitical situation as well as thanks to themeasures adopted by the European Union, the level of these threats has decreased sincethen. Unfortunately, this decrease has not led to lifting border checks. Moreover, someMember States put the bar very low when it comes to the definition of what canconstitute a threat justifying the reintroduction of border checks. For instance, Austria isof the opinion that since the 2015/2016 crisis, the Schengen area does not allow forattaining the objectives set out in Article 3 TEU anymore.
• Migration
To recall, the migratory crisis of 2015 brought hundreds of thousands of persons toEurope mostly fleeing from the war zones in Syria. In 2015 alone, more than 868 000
persons entered into the Schengen area irregularly through the Aegean sea 139. For thisreason, the Commission accepted the notifications of temporary reintroduction of borderchecks at internal borders submitted at that time by Austria, Germany, Slovenia,
Hungary, Sweden, Norway and Denmark. Recital 26 of the Schengen Borders Codestates that “Migration and the crossing of external borders by a large number of thirdcountry nationals should not, per se, be considered to be a threat to public policy orinternal security”, but the level of the migratory pressure was considered exceptional. In
its Opinion of 23 October 2015 on the necessity and proportionality of the controls atinternal borders reintroduced by Germany and Austria140, the Commission explicitly
approved the use of border checks at internal borders as a tool to address theextraordinary migratory pressure.
The available data on migration trends demonstrate that, as of 2018, migratory flows
have returned to the levels before 2015. According to the data collected for the purposeof the Pact on Migration and Asylum, there were 141,700 illegal border crossings in
2019, which means a decrease by 5% compared to 2018, the lowest level in six years.
Moreover, in the period January-November 2020 there have been ‘only’ 114,300 illegal
border crossings, i.e. 10% less than in the same period of 2019. Thus, the claims of someMember States that the data shows that migratory flows are currently getting back to thelevels before the pandemic, cannot be accepted.
These trends put in question the necessity of border checks and suggest that the Member
States do not sufficiently adapt to the changing trends in their response.
• Terrorism
Also the trends regarding terrorism have evolved. While the Paris attack was committed
by an organised group operating from another Member State, the vast majority ofsubsequent attacks have been committed by radicalised individuals who were residing in
139
140

EN

See Back to Schengen – a Roadmap’ COM(2016)120, p. 4.
C(2015)7100 For full reference see Annex 11.

111

EN

the territory of the Member State concerned. It is also striking that in two cases where theculprit crossed the border directly before or after the attack, the borders crossed were atthat moment subject to reintroduced border checks141 that, however, did not lead to any
arrest.
• Management of the External Borders
While in 2015/2016 the frontline Member States were exposed to extreme pressure, thesituation has changed since then. In 2016, serious deficiencies identified at the Greek
external border142 led to the adoption of four Council Recommendations143 that, based on
Article 29, called on five Member States to temporarily reintroduce border checks at theirinternal borders between May 2016 and November 2017. The creation and then further
reinforcement of the European Border and Coast Guard in 2016 and 2019144, the ongoing
implementation of interoperability and the setting up and upgrading of the large-scale ITsystems such as Entry /Exit System (EES), European Travel Information andAuthorisation System (ETIAS), Schengen Information System (SIS) and Visa
Information System (VIS), have already significantly reinforced the management of theexternal borders and will further contribute to making the European border management
the most modern border management system in the world, by the end of 2023.
Furthermore, according to the Report of the Commission on the Functioning of the
Schengen Evaluation and Monitoring Mechanism145, ‘Based on the 42 evaluations
carried out in relation to external border management, it can be concluded that Member
States are to a large extent adequately implementing the Schengen Borders Code andmanaging external borders in line with the acquis. Decisive progress has also been madeto harmonise Member States’ strategic approaches towards external border managementby the gradual implementation of an integrated border management system. Whileserious deficiencies were identified in four Member States146, those countries swiftly took
the necessary measures to address the most important deficiencies. Today, no Member
State has serious deficiencies in this area, but specific challenges remain in a few
countries that still need to be promptly addressed’.
Therefore, also the situation at the external borders cannot be considered to justify
Member States’ decisions on the prolongation of border checks at internal borders.

141

The perpetrator of the Berlin attack in 2016 managed to cross the DE/FR border despite reintroduced
border checks, before being shot in Italy. Similarly, the perpetrator of Nice attack in 2020 managed to crossthe IT/FR border, without being detected.
142
C(2016)1219 Commission Implementing Decision setting out a recommendation on specific measures
to be taken by the Hellenic Republic following the evaluation report of 2 February 2016.
143
Council Implementing Decision (EU) 2016/894 of 12 May 2016 setting out a recommendation for
temporary internal border control in exceptional circumstances putting the overall functioning of the
Schengen area at risk; Council Implementing Decision (EU) 2016/1989 of 11 November 2016, Council
Implementing Decision (EU)2017/246 of 7 February and Council Implementing Decision (EU) 2017/818
of 11 May 2017.
144
Regulation (EU) 2019/1896 (OJ L 295, 14.11.2019, p. 1–131). For full reference see Annex 11.
145
COM(2020)
779
final,
https://ec.europa.eu/homeaffairs/sites/homeaffairs/files/pdf/report_schengen_evaluation_and_monitoring_mechanism_com-2020779_0.pdf.
146
In addition to Greece, serious deficiencies in external border management were identified also by theevaluations of Spain, Sweden and Iceland in 2017. Re-visits were carried out in Sweden and in Iceland in
2019.

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*
The mass influx of third country nationals in 2015/2016 and the series of terrorist attacks
in 2015 and 2016 put a lot of pressure on the Member States and EU institutions. For theCommission, addressing these challenges and, in particular, assessing the seriousness ofa threat to internal security was rendered even more difficult by the fact that it does notdispose of any information concerning the primary and secondary effects of the borderchecks at the internal border. Also for that reason, the Commission opted for a dialogue
with the Member States concerned, instead of taking formal steps (such as issuing an
opinion on the necessity/proportionality of such checks, or launching an infringement
procedure).
In order to adapt the Schengen Borders Code to the persistence of certain threats, theCommission tabled in 2017 a legislative proposal extending the applicable time-limits forborder checks at internal borders in exchange for stronger procedural safeguards (seeAnnex 17). However, the compromise discussed in the trilogues between the colegislators in February 2019 did not find sufficient support among Member States.
In parallel, the Commission continued the dialogue with the Member States. The
discussion was taken up again at the highest political level at the Schengen Forum on
30 November 2020. The participants in the Forum agreed that Schengen needs to bepreserved and that this requires legislative action to make Schengen fit for today’s
challenges (see Conclusions of the Chair – Annex 9).
Nevertheless, some Schengen States report that their citizens expect a certain degree ofcontrol over who is crossing the internal borders. Border controls are a very visible
measure and therefore well suited to demonstrate that the national authorities are taking
decisive action. For example, according to the research carried out in 2016 by theEuropean Council on Foreign Relations (ECFR), an international think-tank, 59 % of the
population in Estonia was ready to give up the Schengen agreement to reduce perceived
threats related to uncontrolled refugee flows. This high percentage might also have to dowith the fact that, at least where internal border controls are limited to certain areas of theborders and are not continuous, a significant part of the population does not experienceany direct negative effects from these controls. According to the special
EUROBAROMETER in 2018, nearly 40% of respondents never travel to other countries
within the EU, thus making them less concerned by the border checks at internal borders.
However, it should be underlined, as demonstrated in the costs of non-Schengen, thepermanent reintroduction of border checks at the internal borders would affect all citizens
indirectly, irrespectively of their travelling habits, as this would generate a significant
costs for the economy overall, without citizens necessarily being aware of this link.

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ANNEX 8: MEASURES BY THE SCHENGEN MEMBER STATES AT THEIR INTERNAL AND
EXTERNAL BORDERS IN RESPONSE TO THE FIRST WAVE OF COVID-19(UNTIL 19 MARCH 2020)
Member State

Measures at the internal and external borders

AustriaInternal borders: Introduction of internal border control with IT (11 March
2020) CH and LI (14 March 2020) for 10 days. Entry into AT from there is
only possible with a health certificate (not older than 4 days) or when
admitting into 2 week home quarantine; transit without further stops inAustria is allowed. Exceptions are foreseen for cross-border workers.
External borders:-

BelgiumInternal borders: No special, restrictive measures at the border for the time
being.
External borders: The Foreign Affairs Ministry advises against any travel
abroad (14 March 2020).

BE closed the visa sections and visa applications centers. Certain categories
of persons will be able to still apply for a visa, but only throughappointment. In line with the COM communication on temporary
restrictions for travelling to the EU and the agreement reached between EU
heads of state and government yesterday, these categories mainly concern
persons who are family members of Belgian or European citizens and otherthird country nationals who have justified reasons or needs for traveling.
Our consulates already advised applicants against travelling to the EU or topostpone travel under the current circumstances, and will continue to do so(17 March 2020).
Bulgaria

Internal borders:External borders: At entry points: contact tracing (forms to be filled-in by
all arriving passengers); brochures with information on COVID-19 and thenecessary prevention measures translated in 10 languages. Ban on entry on
the territory of the country from high-risk countries (a list updated on daily
basis); Limitation of free movement in most affected districts.

CroatiaInternal borders: External borders: -CyprusInternal borders:External borders: Entry into CY will only be granted to individuals who fallunder the categories listed below, provided that, upon arrival, they submit a
medical certificate, issued no more than 4 days before, showing that they
have been tested negative for coronavirus, by certified medical centres intheir country of origin:-

EN

Cypriot citizens/nationals

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-

Legal residents of the Republic of Cyprus
EU or TCNs who work in the Republic of Cyprus
Nationals of countries that are in a designated diplomatic service or
mission under bilateral or international conventions.
EU or third country nationals attending educational institutions in
the Republic of Cyprus.

Those who fulfil all the aforementioned conditions will be placed under a14-day compulsory quarantine at accommodation facilities designated by
the Republic of Cyprus (16 March – 30 April 2020).
Czech Republic

Internal borders: Introduction of internal border controls (12 March 2020).

The measure concerns the land borders with DE and AT and the air borders(14 March 2020 – 18 March 2020): The internal borders with AT and DE
can only be crossed at designated crossing points without any time limit.
Persons, who demonstrably cross internal borders on a regular basis, inparticular cross-border / commune workers, may also cross at other crossing
points.

The above-mentioned obligation does not apply to selected categories of
persons for whom the restriction on the crossing of internal borders would
be disproportionate and in some cases would be contrary to the public
interest. These include, for example, an integrated rescue system, people in
the event of an unforeseen emergency, freight transport, etc.

Prolongation of internal border controls
The measure concerns the land borders with DE and AT and the air borders,and is in force until 4th April 2020 23:59 with the possibility of extension.

The internal borders with DE and AT can only be crossed at designatedcrossing points without any time limit.
External borders: Suspending short term/long term/temporary/permanentvisa and residence permits applications at the CZ embassies.

Additional measures on cross border mobility: Entry ban for all foreigners(incl. EU nationals) with the exception of those foreigners with temporary
and residence permit in CZ (16 March 2020). Various exceptions have been
already approved (for international transport drivers and crews, cross-borderworkers/commuters, rescue services, diplomatic personnel, etc.).

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All foreigners who are at the time of the declaration of the state of
emergency in the territory legally, temporarily or permanently, under therules for the stay of foreigners, are entitled to remain in the territory for theduration of the state of emergency (14 March 2020).

Travel ban for CZ citizens, as well as for foreigners with temporary andresidence permit in CZ (14 March 2020). The entry and travel bans will beapplied earlier for the high epidemic risk areas defined by the Health
Ministry, namely AT, BE, CH, DE, DK, ES, FR, IT, NL, NO, SE, UK,
China, Iran, South Korea.
Denmark

Internal borders: Introduction of internal border controls at all internalborders.
Additional measures also involve travel restrictions and control of persons
at Danish borders: Persons who do not live or work in DK or are notcrossing the borders to deliver goods or services – or for other equally
relevant purposes, will not be allowed entry (14 March 2020- 13 April2020).
External borders: Recommendation that Danes refrain from all nonessential travels out-side Denmark and advise Danes travelling abroad toreturn to Denmark in the coming days.

EstoniaInternal borders: The border guard units (especially at air borders) continue
to perform ordinary border checks activities.

In the frame of mutual assistance, the Police and Border Guard Board is
supporting the activities of the Health Board. The activities are aimed at
supporting preventive actions for reducing the risk of COVID-19 spreading(10 March 2020).
Assistance includes:--

Distribution of information in car terminals of Tallinn Harbour,
external land border crossing points (Narva-1, Koidula, Luhamaa),
at the border between Estonia and Latvia (Valga, Ikla to passengers
traveling by public/mass transport (coaches and buses)).
At the passenger`s request the body temperature measurement byhandheld digital body temperature devices might be performed by
the Police Officers in all locations at the border.

Introduction of internal border controls at land, sea and air borders(17 March 2020).
External borders: Estonia is temporarily suspending the admission of
applications for Schengen visas and long-stay visas to Estonia at Estonia’s
representations and visa centres due to the spread of the coronavirus. This

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also applies to Schengen visa applications processed by Estonia on behalf ofanother member state.

By exception, visa applications can be submitted on humanitarian grounds(illness or funeral of a close relative), for transporting goods or raw
materials, for providing medical or other services essential for the resolutionof the emergency, as well as by individuals whose parent, child or spouse isan Estonian citizen or holds an Estonian residence permit or right ofresidence.

During the emergency situation, previously issued and valid visas cannot be
used to enter Estonia.
Finland

Internal borders: Introduction of internal border controls (18 March 2020 –13 April 2020).

AT INTERNAL BORDERS, MEANING TRAFFIC BETWEENFINLAND AND ANOTHER SCHENGEN STATE, IS ALLOWED:
1.

Return to Finland:a. Finnish nationals and their family members
b. Nationals of other EU and Schengen countries, who are residing in
Finland and their family membersc. Third country nationals residing in Finland with residence permit
2.
Returning transit traffic to other EU or Schengen country or via
them:a. Nationals of EU and Schengen countries and their family members
b. Third country nationals residing in another EU or Schengen country
with residence permit
3.
Necessary cross-border work traffic and other necessary traffic,
which is:a. Healthcare and rescue service professionals/personnel, healthresearchers, and elderly care professionals
b. Transport personnel and other transport staff to the extent necessaryc. Workers, who based on permanent employee relationship work
daily in another country and returns back to the country of residence
at least once a week, taking into consideration local circumstancesand natural travel-to-work aread. Diplomats, staff of international organisations, military personnel
and humanitarian aid workers in the exercise of their functions
e. Necessary (return) transit and returns
f. Passengers travelling for imperative family reasonsg. Persons in need of international protection or for other humanitarianreasonsh. Other necessary and justified traffic. For example, other necessarytraffic would be maintenance work, that requires maintenance team

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or a person arriving from another country and this work cannot be
postponed.
External borders: AT EXTERNAL BORDERS, MEANING TRAFFIC
BETWEEN FINLAND AND NON-SCHENGEN COUNTRY, FOR
EXAMPLE RUSSIA, IS ALLOWED:
1.

Return to Finland:a. Finnish nationals and their family members
b. Nationals of other EU and Schengen countries, who are residing in
Finland and their family membersc. Third country nationals residing in Finland with residence permit
2.
Returning transit traffic to other EU or Schengen country or via
them:a. Nationals of EU and Schengen countries and their family members
b. Third country nationals residing in another EU or Schengen country
with residence permit
3.
Exit of third country national
4.

FranceNecessary traffic, which is:

a. Healthcare and rescue service professionals/personnel, healthresearchers, and elderly care professionals
b. Transport personnel and other transport staff to the extent necessaryc. Diplomats, staff of international organisations, military personnel
and humanitarian aid workers in the exercise of their functions
d. Necessary (return) transit and returns
e. Passengers travelling for imperative family reasonsf. Persons in need of international protection or for other humanitarianreasonsg. Other necessary and justified traffic. For example, other necessarytraffic would be maintenance work, that requires maintenance teamor a person arriving from another country and this work cannot be
postponed.
Internal borders:External borders: Travel restrictions except air travel. Air passengers aretreated in an individual manner (17 March 2020).

France provide information to the public through their network of embassies
and liaison officers. Third country nationals are prevented from boarding.
(They see a drop in extra-Schengen travel of 75%; 25% are remaining EU
nationals, only 5% have no right to enter FR)
Germany

EN

Internal borders: Introduction of internal border control at the land borders
with Denmark, Luxembourg, France, Switzerland and Austria for an initialperiod of ten days. The Federal Republic of Germany reserves the right todetermine border-crossing points for border checks (16 March 2020).

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EN

Cross-border commuters remain largely unimpeded until 17 March 2020
without proof that they have a job in another country. Thereafter, theyshould provide proof of such a job in order to be able to cross the border.
Other unnecessary trips into and out of high-risk areas will no longer bepermitted.
External borders: If a foreigner who is legally resident in the federal
territory and does not possess a residence title applies for a residence title,
his residence shall be deemed to be permitted up to the time of the decisionby the foreigners authority.
GreeceInternal borders:External borders: Temporary closure of land borders.
Internal borders: Introduction of internal border controls at the HU/ AT
border and HU/SI border (12 March 2020).

Introduction of internal border control at the HU/SK border and at all of the
Schengen internal air borders as well (17 March 2020).
Hungary shall permit entry the following border crossing points:-withregardto
Slovenia:
Rédics,Tornyiszentmiklós;
Tornyiszentmiklós- Pince; andwith regard to Austria: Hegyeshalom, Sopron, Rábafüzes; alsoFertőd, Kópháza, Kőszeg, Búcsú és Szentpéterfa.
with regard to Slovakia: Rajka, Tornyosnémeti; also Parassapuszta,
Vámosszabadi, Esztergom, Sátoraljaújhely
Other roads crossing the border along the indicated border areas
will be closed.

HU will extend the reintroduced border control measures at the land and air
borders by 20 days (22 March 2020).
External borders: No more visa issuing to Iranian citizens (16 March 2020).

Non-Hungarian citizens arriving from abroad are denied access to Hungary.
EEA citizens with permanent Hungarian residence card receive the same
treatment as Hungarian citizens. In cases deserving special consideration,
the Hungarian National Police Headquarter may grant exemption from thetravel and traffic restrictions, with appropriate precautionary healthmeasures (17 March 2020):-

EN

the person concerned has undergone a health screening,
no suspicion of COVID-19 infection has been established in thecourse of the health screening, andthe person concerned has been registered by the epidemiologicalauthority

119ENAs a general rule, employees of public sectors which are most affected by
the epidemic situation are prohibited from leaving Hungary.
Iceland

Internal borders: External borders: -Ireland

Internal borders: External borders: -Italy

Internal borders: External borders: All flights from China, Hong Kong, Macau and Taiwan
suspended. Before this date, all passengers arriving from those destinations
were subject to medical screening (31 January 2020).

LatviaInternal borders: Restriction will not apply to cargo, as well as for LV
citizens and TCN with permanent residence rights in LV, who are returning
to LV, and to TCN who wish to leave LV. The foreign diplomats working
in LV, as well as persons arriving in LV for humanitarian reasons or
according to LV national interests are excluded as well.

Controls will not be introduced on the EU's internal borders (17 March
2020).
External borders: All of the EU's external border crossing points will beclosed for people and transport (Restrictions will not apply to cargo).

Short-term and long-term visas for entry to LV will not be issued by LV
diplomatic and consular missions abroad, as long as the emergency situation
exists.
LiechtensteinInternal borders:External borders: The entry for people from high-risk countries are
restricted. High risk countries are countries or areas that must have imposed
extraordinary measures to prevent and combat the new Virus. At present
Italy, Germany, Austria and France are designated high-risk countries.
People from high-risk countries will be refused entry into the Customs
Union with Switzerland. Exceptions are possible. This counts for example
for people who live or work in Liechtenstein. The person that intends toenter the Customs Union has to prove that one the exceptional conditions(Art. 3 of the Ordinance on measures to prevent coronavirus, LR
818.101.24).

Lithuania

EN

Internal borders: Introduction of border control at all internal land-, sea-,
and air borders (14 March – 24 March 2020).

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EN

External borders: Lithuanian consulates worldwide suspended acceptanceand processing of visa applications, including visa applications in
representation of another Schengen states.
Luxembourg

Internal borders: Increased border controls between DE and LU are
expected to take place in the coming days.
External borders:-

Malta

Internal borders:External borders:-

The Netherlands

Internal borders: External borders: Regular border regime in place.

NorwayInternal borders: Introduction of internal border controls at all NO borders(16 March 2020).
External borders: Norway will temporary refuse applications for Schengenvisa (considered to be a threat to public health).

An administrative decision may be taken under the Immigration Act toreject a foreign national without a residence permit. Decisions are taken by
the Directorate of Immigration or the police. The Ministry of Justice andPublic Security may assign decision-making competence to anotherauthority. Foreign nationals who are rejected shall leave the realm without
undue delay. The first paragraph does not apply to EEA nationals, and theirfamily members as defined under section 110 the Immigration Act, who
reside or work in Norway.

Suspension of all representation agreements until further notice.
PolandInternal borders: Introduction of internal border controls at border with CZ,
SK, DE, LT as well as at sea and air border crossing points (15 March – 24
March 2020).
External borders: Entry ban for foreigners (15 March 2020).

PortugalInternal borders: Introduction of internal border controls at border with
Spain (16 March – 15 April 2020). Activation of 9 authorized internal landborder crossing points with Spain.
External borders: All measures should be applied without prejudice of:a. The right of entry for national citizens and holders of residence
permits in both countries;
b. Circulation of diplomatic personnel, Armed Forces and law
enforcement;

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c. Circulation for the purpose of family reunion of spouses or similar
and family members up to 1st degree;d. Access to health facilities, under the terms of bilateral agreements
related to the provision of health care;e. The right to exit of citizens living in another country
Ban on disembarkation of passengers and crew of cruise ships with the
exception of national citizens and legal residents in Portugal.

Suspension of granting of licenses to come ashore for crew members innational ports.
RomaniaInternal borders: External borders:-

Slovakia

Internal borders: Slovakia has taken police and medical measures atinternal borders of the Slovak Republic with Hungary, Czechia and Austria(13 March 2020). The objective of such measures is to limit the spread of
the new Coronavirus through querying the travel history and assessment of
the health condition of travellers.
External borders: Slovakia does not allow to enter the territory by all
foreigners except those, who:-

Slovenia

have residence at the territory of Slovakia
are diplomats accredited in EU member states
are cross-border workers
are foreign health professionals for the purpose of combating
COVID-19- are drivers of vehicles transporting the goods
Internal borders: External borders: Due to limitations on travel being instituted in Europe
and elsewhere, the Ministry of foreign affairs has issued an appeal tocitizens to delay any travel abroad and for those who are abroad to return to
Slovenia immediately 9 March 2020)

Spain

Internal borders: Introduction of border controls at the land borders (17March – 26 March 2020).

The entry into national territory through the land borders will only beallowed to the following individuals:
a)
b)
c)
d)

EN

Spanish nationals;
Residents in Spain;
Cross-border workers;
In case of force majeure, duly accredited with documentary
evidence.

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EN

Foreign personal accredited as a member of diplomatic missions, consular
offices and international organizations located in Spain, are exempted fromthese measures in their displacements, provided these are displacements
linked to the performance of official duties.
External borders:Sweden

Internal borders: External borders: -Switzerland

Internal borders: Introduction of internal border controls at border with IT(13 March – 22 March 2020). In order to make controls at the internalborder to IT effective and at the same time as efficient as possible, a certain
channelling to larger border crossing points is inevitable. For this reason,
smaller border crossing points will stay closed.

Border controls now also apply to the air traffic from Italy, France,
Germany and Austria (18 March 2020). Swiss border control authorities
will set up the corresponding arrangements at the airports. Furthermore,
people from high-risk countries, who comply with one of the four cases
above, may only enter at the airports of Zurich, Geneva or Basel.
External borders: Travel restrictions for passengers from Italy, France,
Germany, Austria, Spain and from all non-Schengen states (18 March
2020):

People travelling from IT, FR, DE, AT and ES may only enter Switzerland
in one of the following four cases:-

they are a Swiss citizen;
they have a residence permit in Switzerland;for professional reasons;if they are in a situation "of absolute necessity".

Suspension of issuing Schengen Visas for three months.

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ANNEX 9: EXAMPLES OF GOOD PRACTICES DURING THE COVID-19 PANDEMIC
At the Hungarian/Slovenian land border, a few days after borders shutdowns related to
COVID-19, both countries gave clear feedback to each other of the negative impact of
this measure. As a result, borders were reopened for cross-border commuters, farmers
and owners of property in the neighbouring country. The authorities agreed to leave themost important border crossing points open to passengers and to freight transport.
Governments acted rapidly and in an organised manner: the restrictions for passenger
traffic in Őrség and freight transport in Lendava were quickly lifted.
As regards twin cities, at the EE-LV land border an exemption was made allowing
residents of the twin towns of Valka and Valga to move across the Estonia-Latvia borderfor ‘valid reasons’. A valid reason was considered to be a job, family or residence inEstonia, but residents had to be included in the list prepared by the Valka Municipality
and had to present a passport or ID card when crossing the border. These rules weretaken in an effort to cause as little disruption as possible to daily life and the provision ofservices.
Euregio Meuse-Rhin underlines the well-functioning multi-governance cooperation of
the local task-forces (Euregio’s Meuse-Rhin’s crisis management task force and citizen
information points) with the regional governments and the national governments ofBelgium, Germany and the Netherlands. In this regard, the trust building during noncrisis times is essential in order to have structures already in place for crisis times andensure a smooth cooperation and the possibility to bring the specific problems of borderregions on the political agenda at regional and national level.
In order to enable cross-border commuters to comply with test requirements on entry,
COVID-19-test facilities directly at the border were built, for example at the GermanFrench border crossing point “Goldene Bremm”147.
General exemptions from quarantine requirement for short-term stays within thecontext of cross-border traffic were introduced by some Member States or regions, e.g.
by the German Bundesland Nordrhein-Westfalen for stays of under 24h for cross-border
traffic from BE, LU and NL148.
The German Bundesland Nordrhein-Westfalen issued a general ruling(Allgemeinverfügung) on 4 April 2021 on test requirements for persons entering fromhigh incidence areas, which extends the period of validity of negative test results forcross-border commuters and for regular visits of close relatives, partners and dependent
children in the Bundesland to 72h compared to 48h for entries for other reasons. Thisway, commuting workers can cover one working week of up to six days with two
negative COVID-19 tests instead of three. In its explanatory memorandum, the generalruling refers to the “close economic and personal ties” in border areas, and comes to theconclusion that the strict test requirements in case of the classification of a neighbouring
country as “area of high incidence” would lead to a “considerable burden” on the border147

https://www.saarland.de/DE/portale/corona/impfungtest/testzentrum/testzentrum-dt-fr/deutschfranzoesisches-testzentrum/deutsch-franzoesisches-testzentrum_node.html
148§ 4(6) 1) CoronaEinrVO NRW of 15 January 2021, last amendment on 27 March 2021.

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citizens. The extension of the validity of test results of these groups of persons is seen as
a “proportionate balance” between infection control and the mobility of these groups of
persons. “The mobility of employees and close relatives should not be restricted at theexpense of companies in border regions and families.”149

149

Allgemeinverfügung zur Regelung von Ausnahmen von der Testpflicht bei Einreise aus
Hochinzidenzgebieten nach § 4 Absatz 2 Nummer 5 der Coronavirus-Einreiseverordnung,
Allgemeinverfügung des Ministeriums für Arbeit, Gesundheit und Soziales vom 4. April 2021,
https://www.mags.nrw/sites/default/files/asset/document/210404_av_hochinzidenzgebiete.pdf

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ANNEX 10: USE OF POLICE CHECKS AND NEW TECHNOLOGIESWITHIN THE LAST FIVE YEARSBased on the Member States’ written contributions on the discussion paper on thestakeholder consultation:MS
Austria

Czechiaother compensatory measures inuse-

Comments

Police checks in the border At border sections that are heavily
area with Italy, Slovakia and affected by illegal migration, police
Czech Republic*
checks are no alternatives tointernal border controls. Since forexample not all neighbouring
countries apply the readmissionagreements, only reintroduction ofborder control guarantee the returnof persons, attempting to enter
illegally, to the country of origin-

Video surveillance
Plate recognition systemdronesVideo surveillance is used atcertain border crossings. Mobile
license plate recognition is used
wherever there is added value interms of criminal tactics. Drones
are also used for internal bordersurveillance-

police checks as within theentire territory, intensified
becauseof
COVID-19
measures

The differences between intensified
police checks in the area of internalborders and non-systematic borderchecks:•The
temporary
reintroduction of border control
must be decided by the government
and, under certain conditions, by
the Ministry of the Interior•
Crossing of internal borders
at any point may be restricted
duringthetemporary
reintroduction of border control –crossing may be allowed only at
authorised crossing points•
Checks of persons purely inresponse to border crossing are

EN

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EN

possible during the temporary
reintroduction of border control•
Entry may be refused
duringthetemporary
reintroduction of border control•
Checks of residence andother police checks are carried out
at all times, are targeted at security
and migratory situation, and may
only be conducted based onreasonable suspicion.

GermanyEN-license plate recognition,dronesfacial recognition.
Germany
implements(border) police measures inthe border regions (so-called“Schleierfahndung”) in close
cooperation with the police
authorities
oftheneighbouring countries. Inview of migratory andsecurity challenges, thesemeasures were intensified in
2019.

127

Germany does not consider the socalled“Schleierfahndung”
asubstitute for internal bordercontrols, but an instrument of daily
practice, without the existence of a
special danger/threat situation.
(Border) police measures below thethresholdof
temporary
reintroduction of internal bordercontrols cannot be equated withtemporary internal border controls
due to the different prerequisites
and legal consequences.

ENFinland--police checks as within the Intensified use of police checks inentire territory, intensified?
the areas of internal borders are
only enforced if the case is basedon criminal investigations, crime
prevention or individual case or
phenomena related to public orderor safety

Finland has gained experience infree movement since 1950’s when
Nordic Passport Union was
created. Within the union, all
Nordic countries had a possibility
to flexibly use spot-checks at their“internal borders”. According toour experience, this measure wasless intrusive than border controls,
and not viewed to hamper freemovement by the general public.

camera surveillance

Other relevant ideas: Mobile
networks could help to detect if amobile phone crosses the borderand this information can be used toalert
authorities
forillegalsecondary movement. This solution
would require connecting Eurodac
and SIS data with telephone
information.

EN

Croatia-use of drones and automated These measures are reported to beplate readers
used in addition to regular checks
given the situation of Croatia withregard to whom the Council has
not taken the decision on lifting
border controls yet.

Hungary

-

Malta

-

police checks as within the
territory
policechecks,no The present system is adequate andintensification
do not see any need for majorchanges as the distinction is clear

128

EN

Norway--

Poland-use of API data from ferries
bound for Norway from
Denmark,
SwedenandGermany.
Ferrycompanies
areresponsible for checking thatthe passengers have thenecessary travel documents
for entry into Norway before
boardingtheferry.
Passengers without such
documents shall be refusedboarding.
Police checks

The pre-arrival screening of thisinformation is an efficient way ofcontrolling large passenger flows
while minimizing the need forphysical controls.

There is a room for more flexibility
with regard to the police checks
carried out on the basis of art. 23
SBC. Currently, these police
checks are justified with the rightto prove identity or check thelegality of stay.
More leeway to use targeted checks(identity/legality of stay) withregard to internal flights, identified
as posing additional risk (e.g. used
for secondary movements), could
be considered. Such checks should
not be interpretd ad systematic
checks if used in a justified andproportional manner.

Joint patrols and other forms ofpolice checks indicated in therecommendation were already used
before and their use is continued.

Slovakia-

Police cooperation
Police checks intensified

Switzerland-

Checks based on Customs In certain situations, it has
Inspections
operational advantages to perform
checks at the border itself.

Intensified police checks are only
police immigration checks

A decisive factor to assess whether
police checks at internal borders

EN

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EN

become unlawful border controls is
the impact that these checks haveoverall on cross-border traffic in
the concerned region. Police andcustoms checks are carried out on arisk-based approach. Switzerland isof the opinion that checks that only
affect a fraction of the traffic and /or persons crossing a specificborder do not constitute unlawful
border checks at internal borders

It is used as a tactical tool for
analysis, investigations and thesearch for persons-

use of systematic license
plate recognition on theborder and in the borderregion.

* period before COVID

EN

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ANNEX 11: DUTCH @MIGO-BORAS SYSTEM

FACTSHEET on the use of the @MIGO-BORAS system
This factsheet provides information about the aim of and methods used by the camera
surveillance system developed by the Royal Marechaussee (Koninklijke Marechaussee;
KMAR) to support mobile supervision controls. The system is called @MIGO-BORAS –a Dutch/English acronym which stands for Mobile Information-Driven Action – Better
Operational Results and Advanced Security. The system has been operational since 1
August 2012.
Aim
The system will provide technical support to mobile supervision controls conducted by
the KMAR. It will make these controls more information-driven and allow them to be
conducted more efficiently and effectively.
Legal framework
The crossing of internal borders between EU member states is governed by the Schengen
Borders Code.150 Under Article 22 of the Code, ‘Internal borders may be crossed at any
point without a border check on persons, irrespective of their nationality, being carried
out.’ Article 23 of the Code provides that ‘The abolition of border control at internalborders shall not affect the exercise of police powers by the competent authorities of theMember States under national law, insofar as the exercise of those powers does not havean effect equivalent to border checks.’ This also applies explicitly in border areas.
In the Netherlands, police controls in the border areas are carried out by the KMAR. The
KMAR is a military police organisation under the responsibility of the Minister ofDefence. However, the predominantly civil police tasks for which it is responsible fallwithin the remit of the civil authorities. Under section 6 of the Police Act 1993 andRegulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons across borders (Schengen
Borders Code), OJ EU 2006, L 105/1. Amended Regulation (EU) 2016/399, OJ EU 2016 L77/1
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section 47 of the Aliens Act 2000, the KMAR is responsible for supervising compliancewith the statutory provisions relating to aliens in the Netherlands. The Minister for
Migration (the State Secretary of Security and Justice of the Netherlands) has authority
over the KMAR in this respect. Within this framework the KMAR conducts operational
supervision of aliens (i.e. the mobile supervision operations mentioned above) in theinternal border area with Belgium and Germany that extends 20 km into the Netherlands
from the border.151
Mobile supervision controls conducted by the KMAR are intended:
1. to combat illegal residence, organised or otherwise (human trafficking or people
smuggling) at the earliest possible stage and to prevent and discourage otherprospective migrants from travelling to the Netherlands illegally;
2. to help combat cross-border crime and migration-related crime.
The timing, duration and frequency of these controls fall within the framework of the
Schengen Borders Code and the case law of the Court of Justice of the European
Union.152 153
The Schengen Borders Code contains no specific rules governing camera surveillance inborder areas. In draft guidelines on the functioning of the Schengen area, the European
Commission recently turned its attention to the use of camera surveillance in internalborder areas, and specifically automatic number plate recognition. In the Commission’sview, camera surveillance is permissible in these areas under European law as long as it
is compatible with the Schengen Borders Code and does not have an effect equivalent toborder checks.
The national legal framework for mobile supervision operations applies fully to the
support provided by the @MIGO-BORAS surveillance system. The legal framework forthe intensity and frequency of the controls is laid down in Dutch immigration legislation.
Mobile supervision controls can be carried out in Dutch territory in areas up to 20 km
Section 50 of the Aliens Act 2000 in conjunction with article 4.17a and b of the Aliens Decree
ECJ, judgment in Melki (C-188/10) and Abdeli (C-189/10).
153 Section 50 of the Aliens Act 2000 in conjunction with article 4.17a (and 4.17b) of the Aliens Decree.
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from the border with Belgium and Germany. On a given road, they may be carried out
for up to six hours per day and for a maximum of 90 hours per month.
Mobile supervision controls are conducted on the basis of section 50 of the Aliens Act
2000 and article 4.17a (and b) of the Aliens Decree 2000. The powers laid down inimmigration legislation do not provide a specific basis for the use of camera surveillanceor number plate recognition.
The @MIGO-BORAS system has three functions:
1. to collect anonymous data for analysis and the construction of traffic profiles;
2. to observe vehicles and select those to be stopped and examined on the basis ofanalysis;
3. to respond to quick alerts in situations where there has been a serious or largescale breach of the legal order or public order or in the interests of emergency
assistance (as in the case of an amber alert).
For immigration law purposes, anonymous data only will be used for the first twofunctions (analysis and surveillance). The data stored will not be traceable to individuals
since the list of characteristics that forms the basis for data collection and vehicle
surveillance and selection is limited. Any data traceable to individuals (such as number
plates) will be encrypted before they are processed. In the case of the third application,quick alerts, the data in question is traceable to individual motorists, since in an
emergency scenario, one or more specific number plates will be sought. This third
application does therefore constitute an infringement (albeit limited) of the right toprivacy as laid down in article 10 of the Dutch Constitution, article 8 of the European
Convention on Human Rights and articles 7 and 8 of the EU Charter of Fundamental
Rights. The statutory basis for the processing of personal data in the context of quick
alerts can be found in section 2 of the Police Act. The Data Protection Authority (CBP)
recognises this application in its guidelines on automatic number plate recognition
systems. This infringement is proportionate given the purpose of quick alerts. Such
operations serve a justifiable purpose, i.e. investigating and preventing serious criminal
offences (in situations where the assistance of the emergency services is required or there
has been a particularly serious or large-scale breach of the legal order or of public order).

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The number plate data collected for quick alert purposes is handled by a very small
number of KMAR staff, limiting the infringement of privacy rights. Strict criteria havebeen laid down in respect of who may access the data and under what conditions. The
data may be processed provided this is essential for investigative purposes or emergency
services assistance.
Organisation and design@MIGO-BORAS is a modular system, which can be operated according to the different
functions for which it is designed.154
The system consists of 15 fixed camera (or sensor) installations and six vehicle-mounted
mobile sensors plus a central control application to which all data is sent and processed.
The fixed sensors are positioned in the main through routes in the border area with
Belgium and Germany and are used exclusively in Dutch territory.
The system can be used both for data collection and for surveillance. These specificfunctions are described in the section below on ‘Use’.
During data collection (function 1), traffic patterns are observed in accordance with adata collection plan. Smart sensors classify every passing vehicle by category (e.g. heavy
goods vehicle, standard car or SUV), colour, country/region of origin and time andlocation. Vehicle and traffic-pattern risk profiles are then developed on the basis of these
data. No number plates or other data that can be traced to individual persons will beprocessed.
When function 2 (surveillance) is used, the system observes characteristics of passing
vehicles during the limited periods in which it is operating as part of mobile supervision
operations. The system then uses existing risk profiles to establish whether a passing
vehicle is a likely candidate for a vehicle check. In doing so the system makes theselection of vehicles for examination quicker and more objective. It is therefore a useful

The CBP's guidelines on automatic number plate recognition systems and the Brouwer-Korf
Committee's recommendations were specifically considered throughout the design process.
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addition to existing KMAR practice based on the professional experience of its staff. It
helps optimise implementation of KMAR tasks and makes staff deployment more
efficient. It also increases the likelihood of identifying suspect vehicles, which in turnwill reduce the number of checks to which bona fide motorists are subjected. Withassistance from @MIGO-BORAS the KMAR attempts wherever possible to conduct its
controls in the right place, at the right time and on the right vehicles.
When function 3 (Quick Alert) is used in exceptional situations, one or more specificnumber plates is searched for in the system.
Use
In accordance with recently-amended national legislation, mobile supervision operations
are conducted as far as possible on the basis of intelligence held and/or empiricalinformation on illegal residence. To a limited extent, mobile supervision controls are
conducted with a view to gathering intelligence on illegal residence.155 During the limited
period in which mobile supervision operations can be conducted, the @MIGO-BORAS
system will provide direct support by comparing characteristics of passing vehicles withexisting risk profiles. In addition, the system will be used (on the basis of the datacollection plan) to gather anonymous traffic-flow data which will help analysts whendrawing up new risk profiles or improving existing ones.
The three functions are explained in more detail below:
1. Anonymous data collection and analysis
The data collected on each passing vehicle is made anonymous. This ensures that thevehicle (and its passing the location in question) can no longer be traced back to anindividual. Once this data is anonymous, it is analysed and then used to draw up risk
profiles. It is also used to help analysts recognise trends and developments in traffic
patterns. The latter helps KMAR plan and manage its subsequent mobile supervisioncontrols. The risk profiles will be used to support the system of aliens supervision. The
legal basis for this process lies in the general power to supervise aliens in the

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Article 4.17a of the Aliens Decree 2000.

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Netherlands. The profiles resulting from the collection and analysis of anonymous data
comply with applicable anti-discrimination legislation. The purpose of this function is tocollect information that can be used for data analysis. No immediate follow-up takes
place in the context of this function and thus no individual vehicle is subjected to a checkdirectly as a result of it.
2. Observing vehicles and selecting those to be stopped and examined
The KMAR observes vehicles and selects those to be stopped and examined using risk
profiles drawn up on the basis of the analysis of the data obtained by @MIGO-BORAS(see function 1) and any other information at the KMAR’s disposal. The deployment of@MIGO-BORAS is based on a surveillance plan which specifies what sensors are to be
activated and when. The use of @MIGO-BORAS is thus compatible with the provisionsof article 4.17a of the Aliens Decree 2000. If a particular vehicle matches a particular risk
profile, the controller receives a signal (a ‘hit’). The controller can then advise a mobile
KMAR officer which vehicle should be subjected to a check. After making visual contact
with the vehicle the officer will then either stop the vehicle in question or decide not to
perform a check.
It is technically possible to use @MIGO-BORAS in conjunction with police information
to investigate crime and enforce criminal law. This is not being done for the time being
until the legal framework surrounding the statutory basis for such use has been
determined more fully. Under the general police powers as laid down in the Police
Act,156 the system may be used for quick alerts in exceptional or urgent situations.
3. Providing assistance when a quick alert is issued
Under section 2 of the Police Act 1993, a quick alert (such as an amber alert or terrorist
threat) may be issued in the interests of emergency assistance or if there has been aserious or large-scale breach of the legal order or of public order. In such cases,@MIGO-BORAS may be used to follow up on an alert.

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Sections 2 and 6 of the Police Act 1993.

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Inherent in the system’s design are a number of options that fulfil the principle of‘privacy by design’. In addition, design choices were made to maximise the system’s
compatibility with the KMAR’s operational processes while taking account of current
legislation and anticipated developments in the law. Examples of the choices
underpinning the system’s design include:•

The distinction between data collection and surveillance:o When in data collection mode, @MIGO-BORAS registers every vehicle thatpasses its sensors. Before the data is saved it is made anonymous. This means thatthe number plate is converted to a code that cannot be traced to an individual
person.
o When in surveillance mode, the system compares the characteristics of a vehicle
recorded by the sensors with those contained in a risk profile. Using the profilingmodel, passing vehicles can be observed and compared with a set of vehicle
characteristics without the need to reveal number plates.

•

Data collection and surveillance are always performed on the basis of plans for eachactivity. If no plan is active the central application will receive no data on passing
vehicles.
o The data collection plan contains the specifications of the sensors to be deployed(e.g. the location, time and duration of their use). It also contains the address towhich the data obtained are to be delivered.
o The surveillance plan contains the same type of sensor specifications as thoseincluded in the data collection plan. The surveillance plan specifies the risk
profiles with which the characteristics of passing vehicles are to be compared. It
too contains the address to which vehicle data are to be delivered if theycorrespond to those contained in the risk profile.

•

The system distinguishes between several types of target-group definitions to identify
relevant vehicles as specifically as possible. It is possible both to specify known
number plates and to specify risk profiles that contain characteristics relating tovehicles in a given target group.

Fictitious scenario
A combination of empirical information, KMAR intelligence and general police data
analysis has revealed that illegal migrants are being transported to Westland to work in

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commercial glasshouses there. Intelligence suggests that white minibuses, mostly fromcountry X, region Y, are being used for this purpose. The illegal aliens are often
smuggled into the Netherlands in the early hours of the morning. It then emerges from@MIGO-BORAS data collection that a noticeably high number of white passenger vansfrom country X, region Y has been observed moving in convoy between 01.00 and 02.00
on Tuesday mornings, usually a quiet time. This turns out to be a weekly pattern – at thesame location and the same time – which is at odds with the usual traffic pattern on otherdays of the week.
The KMAR decides to plan a mobile supervision control at this time and draws up a risk
profile based on the characteristics of such vehicles. When a certain vehicle passes, thesystem produces a hit matching the profile vehicle. The controller alerts a mobile officer
to the hit. The officer then follows the vehicle in question and provides visualconfirmation of the passenger complement. The vehicle is then subjected to a check.
Protection of privacy
When control is carried out using risk profiles, officers may check a vehicle on the basisof a single hit. Should this lead to follow-up action provided for by law, the system will
provide visual footage of the vehicle in question, plus the date, time and location of thecheck. The whole data set, including reference to the risk profile employed, is stored aspart of the official report arising from the vehicle check. These data (which are traceable
to the individual concerned) will thereafter be stored in the KMAR’s operational
processing system and not in the @MIGO-BORAS system. Under section 8 of the Police
Data Act, these data may be stored for up to five years. Non-hits are not stored.
If a particular vehicle is being sought in the context of a quick alert, the cooperation andassistance involved in processing data traceable to the individual concerned takes placein the context of national security and public order. If a hit is identified in the context of aquick alert, the system will generate footage of the vehicle and the date, time andlocation. The whole data set relating to the hit will be transferred to the requesting party(i.e. the Public Prosecution Service or the police) and stored in accordance with national
legislation under that party’s responsibility. The KMAR does not store this data itself.

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Since the system uses digital technology, it was registered with the Data Protection
Authority (CBP) when it was developed in 2005. Throughout the development process
designers took account of the CBP’s guidelines on automatic number plate recognition.
The CBP has indicated that in line with established procedure, it waits until systems areoperational before assessing whether they meet, statutory requirements.
Everyone is legally entitled to ascertain whether KMAR has processed any of theirpersonal data and, if so, which personal data it has processed.157 KMAR announces thepresence of permanent cameras by signs at the side of the road. Information about thesystem and privacy issues is also publicly available online.
Cooperation with neighbouring countries
Neighbouring countries and the Commission has been informed about theimplementation and function of the system.

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Sections 25 and 28 of the Police Data Act.

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ANNEX 12: REPORTS RECEIVED BY MEMBER STATES WITH INTERNAL BORDERCONTROL IN PLACE BETWEEN MARCH AND JUNE 2020 IN ACCORDANCE WITH
ARTICLE 33 SBC

EN

Reintroducing
Member State

Reportreceived(yes/no)Comments

Austriano-

BelgiumYes

20/03/2020 – 14/06/2020; comprehensive report, covering
all requested aspects and including statistical data

Czech
Republic

yes

14/03/2020 – 30/06/2020; comprehensive report, covering
all requested aspects and including statistical data

Denmarkno-

Estoniayes

17/03/2020 – 16/06/2020; the report covers all requested
aspects, including basic statistical data

Finlandyes

19/03/2020 – 18/09/2020; the report covers all requested
aspects

Franceno-Germanyno-

Hungaryyes

12/03/2020 – 30/06/2020; the report covers all requested
aspects (some very shortly) and includes statistical data

Icelandyes

24/04/2020 – 22/06/2020; the report does not cover all
respected aspects (no information regarding the impact on
freedom of movement, the ex-post assessment of the
proportionality) and some aspects are only shortly addressed

Lithuania

yes

14/03/2020 – 14/09/2021; comprehensive report, covering
all requested aspects, including statistical data and an
additional section on lessons learnt

Norwayno-

Polandyes

15/03/2020 – 12/06/2020; comprehensive report including
statistical data

Portugalyes

16/03/2020 – 30/06/2020; the report does not cover all
respected aspects (no information regarding the impact on
freedom of movement and the ex-post assessment of the
proportionality) and some aspects are only shortly
addressed, it includes statistical data

Slovakia

yes

08/04/2020 – 26/06/2020; the report covers all requested
aspects, although some aspects are only shortly addressed

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Spainyes

14/03/2020 – 30/06/2020; the report covers all requested
aspects, although some aspects are only shortly addressed
and includes statistical data

Switzerland

yes

13/03/2020 – 15/06/2020; the report does not cover all
respected aspects (no information regarding the operation of
the controls, the impact on freedom of movement, the expost assessment of the proportionality), including statistical
data

General observations:
-

-

-

-

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Most reports were in large parts rather descriptive, particularly regarding the initialassessment of the criteria of the SBC. In general, the content and shared information
varies greatly, from detailed statistics to very general statements that a certain criterion
is fulfilled.
The reports did not access the effectivity and the proportionality of the reintroductions
in a uniform manner. Particularly the assessment of the proportionality is not based on
a common definition of “proportionate”. Only very few reports referred to the possible
use of alternative measures, but only assessed their viability and effectivity very
briefly.
Some reports did not draw a clear line between entry restrictions and border control, in
essence assessing the criteria for the entry restrictions, not for the reintroduced bordercontrol.
Apart from one report, which included a section on lessons learnt from thereintroduction, no issues or problems during the reintroduction were raised in thereports.

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ANNEX 13: API AND PNR
API data refers to the passengers’ identity, usually taken from their official documents, aswell as the flight information for passengers, including the number and type of travel
document used, nationality, full names, the date of birth, the border crossing point of entry
into the territory of the Schengen Member States, mode of transport, departure and arrival
time of the transportation, total number of passengers carried on that transport, and the initialpoint of embarkation158. API data is highly valuable for internal security due to its accuracy
and reliability. Carriers are obliged to transmit this data, by end of check-in, at their request to
the responsible authorities of the Member State that the passengers will enter through theauthorised border crossing point to which the carrier will transport them. Under Union law,however, air companies only transmit API data of passengers travelling into the European
Union to the border control authorities at destination, and only for border control purposes.159
This means API data are not available for other security purposes, and notably cannot becollected for intra-Schengen flights.
PNR data160 is provided by passengers at the moment of booking and contain, apart frompassenger’s name and surname, information such as payment details, contact details or
luggage information. It must be borne in mind that PNR data is collected for commercial
purposes and data crucial for the use for law enforcement purposes, such as passenger’s dateof birth, are often missing. This is particularly relevant for the processing of PNR data against
databases such as SIS: the processing of incomplete data may lead to a high number of false
positive hits. Law enforcement practitioners have stressed that the best operational results areoften achieved by the joint processing of the more reliable API data which enables theconfirmation of the identity of passengers, together with richer PNR, which reveals important
information about passengers’ travel behaviour161. API also allow the authorities to ensurethat the system works in a targeted manner so that only those passengers who are genuinely
suspicious are identified162.

158

For more information see Directive 2004/82/EC on the obligation of carriers to communicate passenger data,
Study on Advance Passenger Information (API) – Evaluation of Council Directive 2004/82/EC on the obligationof carriers to communicate passenger data: https://op.europa.eu/en/publication-detail/-/publication/3ef3a3945dcb-11ea-b735-01aa75ed71a1/language-en/format-PDF
159
See Directive 2004/82/EC. For full reference see Annex 16
160
The collection and processing of PNR data in the EU is regulated by the Directive (EU) 2016/681 of theEuropean Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data forthe prevention, detection, investigation and prosecution of terrorist offences and serious crime, OJ L 119,4.5.2016, p. 132.
161
SWD(2020) 128 final, p.43.
162
Ibidem, p.26.

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ANNEX 14: NEW IT ARCHITECTURE AT THE EXTERNAL BORDERS
The Entry/Exit System (EES) is a new automated IT system for registering travellers fromthird-countries, both short-stay visa holders and visa-exempt travellers, each time they crossan EU external border and will replace the current system of manually stamping passports.
ETIAS is also a new, largely automated IT system created to identify security, irregularmigration or high epidemic risks posed by visa-exempt visitors travelling to the Member
States, whilst at the same time facilitate crossing borders for the vast majority of travellers
who do not pose such risks. Non-EU nationals who do not need a visa to travel to Schengen
will have to apply for a travel authorisation through the ETIAS system prior to their trip. EES
and ETIAS are to be operational in 2022.
The Interoperability Regulations establish a framework for the interoperability of the six
central large-scale IT systems in the field of borders, security and migration, namely EES,
VIS, ETIAS, Eurodac, SIS, and ECRIS-TCN. It will be operational from 2023.

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ANNEX 15: BORDER AREAS
In the absence of a definition of the border area in the Schengen Borders Code, any futurereference to the border areas could be constructed as referring to one of the following:
Local Border Traffic (Regulation 1931/2006)163
The 2006 Regulation laying down rules on local border traffic at the external land borders of
the Member States allows derogating, for persons living in a border area, from the generalrules on border checks set out in the Schengen Borders Code. The aim is to avoid creating
barriers to trade, social and cultural interchange or regional cooperation with neighbouring
countries. The Regulation authorises Member States to conclude bilateral agreements withneighbouring non-EU countries, provided these agreements fully comply with the parameters
set by the Regulation.
In the regulation, the border area has been defined as “an area that extends no more than 30
kilometres from the border. The local administrative districts that are to be considered as theborder area shall be specified by the States concerned in their bilateral Agreements as referred
to in Article 13. If part of any such district lies between 30 and 50 kilometres from the borderline, it shall nevertheless be considered as part of the border area”. However, this definition
has been extended in 2011 in view of the specific situation of the Kaliningrad Oblast, to avoid
the division of integrated areas and excludes political and economic centres. According toRegulation 1342/2011164, the border area include also specific districts and cities (e.g. Gdansk
which is >100km from the border).
NUTS
In accordance with Regulation No 1059/2003 of 26 May 2003165, the NUTS classification(nomenclature of territorial units for statistics) subdivides the economic territory of theMember States, as defined in Decision 91/450/EEC, into territorial units. It ascribes to eachterritorial unit a specific code and name. The NUTS classification is hierarchical. It
subdivides each Member State into NUTS level 1 territorial units, each of which is subdivided
into NUTS level 2 territorial units, these in turn each being subdivided into NUTS level 3
territorial units (Article 1). Regulation (EU) 2017/2391 of 12 December 2017 amending
Regulation (EC) No 1059/2003 as regards the territorial typologies (Tercet) specifies that thecommon statistical classification of territorial units (NUTS) has been established in order toenable the collection, compilation and dissemination of European statistics at different
territorial levels of the Union (Article 1). While this system is well-known to Member States
it should be noted that its design is not based on purely geographical criteria. Instead, the163

Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 laying
down rules on local border traffic at the external land borders of the Member States and amending the provisionsof the Schengen Convention OJ L 405, 30.12.2006, p. 1–22
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006R1931
164
Regulation (EU) No 1342/2011 of the European Parliament and of the Council of 13 December 2011amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad oblast and certain Polishadministrative districts in the eligible border area, OJ L 347, 30.12.2011, p. 41–43
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011R1342
165
Regulation (EC) No 1059/2003 of the European Parliament and of the Council of 26 May 2003 on theestablishment of a common classification of territorial units for statistics (NUTS)
OJ L 154, 21.6.2003, p. 1–41, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32003R1059.

EN

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classification of NUTS territorial units is based on existing administrative units in theMember States and on their respective population numbers. While administrative units whichreach the agreed thresholds for the respective NUTS level constitute a NUTS territorial unit
by themselves, administrative units with low population numbers are combined with others
until they reach the required threshold, taking into consideration other relevant criteria, suchas geographical, socio-economic, historical, cultural or environmental circumstances166.
Consequently, the size of these units varies greatly between and also within the Member
States167 depending on the population density in the areas concerned. Therefore, an approachbased on NUTS territorial units does not appear suitable as a point of reference for thedefinition of border areas.

166

Regulation (EC) No 1059/2003, Article 3.
See maps on the NUTS classification of the territories of the different Member States athttps://ec.europa.eu/eurostat/web/nuts/nuts-maps.
167

EN

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ANNEX 16: LIST OF LEGAL ACTS AND PROPOSALS MENTIONED IN THE IMPACT ASSESSMENT
Title/Link

Page

Council Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal market inrelation to the free movement of goods among the Member States OJ L 337, 12.12.1998, p. 8–9
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31998R2679

53

Agreement between the Governments of the States of the Benelux Economic Union,
the Federal Republic of Germany and the French Republic on the gradual abolition ofchecks at their common borders OJ L 239, 22.9.2000, p. 13

4https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv%3AOJ.L_.2000.239.01.0001.01.ENG&toc=OJ%3AL%3A2000%3A239%3ATOC
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 theircommon borders, OJ L 239, 22.9.2000, p. 19

4, 47

https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv%3AOJ.L_.2000.239.01.0001.01.ENG&toc=OJ%3AL%3A2000%3A239%3ATOC
Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of theConvention implementing the Schengen Agreement of 14 June 1985 OJ L 187, 10.7.2001
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001L0051

47

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 andreside 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(Text with EEA relevance), OJ L 158, 30.4.2004, p. 77–123

10

https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32004L0038
Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluationand monitoring mechanism to verify the application of the Schengen acquis andrepealing the Decision of the Executive Committee of 16 September 1998 setting up
a Standing Committee on the evaluation and implementation of Schengen

4

OJ L 295, 6.11.2013, p. 27–37
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R1053

EN

C(2015)7100 Opinion of 23.10.2015 on the necessity and proportionality of the controls at internalborders reintroduced by Germany and Austria pursuant to Article 24(4) of Regulation No 562/2006(Schengen Borders Code)https://ec.europa.eu/home-affairs/sites/default/files/e-library/documents/policies/borders-andvisas/general/docs/commission_opinion_necessity_proportionality_controls_internal_borders_german
y_austria_en.pdf

31

Communication from the Commission to the European Parliament and the Council:
Back to Schengen - A Roadmap, 4 March 2016, COM(2016) 120 final

21,
31,

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https://ec.europa.eu/home-affairs/sites/default/files/what-we-do/policies/borders-andvisas/schengen/docs/communication-back-to-schengen-roadmap_en.pdf

37, 38Regulation (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 acrossborders (Schengen Borders Code), OJ L 77, 23.3.20164https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0399(codifying first Schengen Borders Code: Regulation (EC) No 562/2006 of theEuropean Parliament and of the Council of 15 March 2006 establishing a Community
Code on the rules governing the movement of persons across borders (Schengen
Borders Code), OJ L 105, 13.4.2006, p. 1–32, and subsequent amendments)
Council Implementing Decision (EU) 2016/894 of 12 May 2016 setting out a recommendation for
temporary internal border control in exceptional circumstances putting the overall functioning of the
Schengen area at risk; OJ L 151, 8.6.2016, p. 8–11
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D0894

17,
Anne
x 7,
p.50

Council Implementing Decision (EU) 2016/1989 of 11 November 2016 setting out a recommendation
for prolonging temporary internal border control in exceptional circumstances putting the overall
functioning of the Schengen area at risk, OJ L 306, 15.11.2016, p. 13–15
https://eur-lex.europa.eu/legalcontent/EN/TXT/?toc=OJ:L:2016:306:TOC&uri=uriserv:OJ.L_.2016.306.01.0013.01.ENG

Annex 7, p.
50

COM(2017)571 Proposal for a Regulation amending Regulation (EU) 2016/399 as
regards the rules applicable to the temporary reintroduction of border control atinternal border.

5, 31,
37https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52017PC0571
Council Implementing Decision (EU) 2017/246 of 7 February 2017 setting out a Recommendation for
prolonging temporary internal border control in exceptional circumstances putting the overall
functioning of the Schengen area at risk OJ L 36, 11.2.2017, p. 59–61
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017D0246

Anne
x 7, p.
50

Council Implementing Decision (EU) 2017/818 of 11 May 2017 setting out a Recommendation for
prolonging temporary internal border control in exceptional circumstances putting the overall
functioning of the Schengen area at risk OJ L 122, 13.5.2017, p. 73–75
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.122.01.0073.01.ENG

Annex 7, p.
50

COMMISSION RECOMMENDATION of 12.5.2017 on proportionate police checks
and police cooperation in the Schengen area C(2017)3349

7, 18,
29,
31,
38,
39, 43https://ec.europa.eu/home-affairs/sites/default/files/what-we-do/policies/europeanagendamigration/20170502_recommandation_on_schengen_area_police_checks_and_cooperation_en.pdf
Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30
November 2017 establishing an Entry/Exit System (EES) to register entry and exit
data and refusal of entry data of third-country nationals crossing the external bordersof the Member States and determining the conditions for access to the EES for law
enforcement purposes, OJ L 327, 9.12.2017.

EN

147

6, 32

EN

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017R2226
Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12
September 2018 establishing a European Travel Information and Authorisation
System (ETIAS), OJ L 236, 19.9.2018.

6, 32

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1240
Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April
2019 establishing a centralised system for the identification of Member States
holding conviction information on third-country nationals and stateless persons(ECRIS-TCN) to supplement the European Criminal Records Information System
and amending Regulation (EU) 2018/1726, OJ L 135, 22.5.2019, p. 1–26

32

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R0816
Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May
2019 on establishing a framework for interoperability between EU information
systems in the field of borders and visa, OJ L 135, 22.5.2019, p. 27.

6, 32

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R0817
Regulation (EU) 2019/1896 of the European Parliament and of the Council of 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. 1–131
https://eur-lex.europa.eu/eli/reg/2019/1896/oj

Annex 7, p.
50

COM/2020/609 COMMUNICATION FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC
AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on a
New Pact on Migration and Asylum

5

https://eur-lex.europa.eu/legalcontent/EN/TXT/?qid=1601287338054&uri=COM:2020:609:FIN
COM(2020)791final Proposal for a Regulation amending Regulation (EU) 2018/1862
on the establishment, operation and use of the Schengen Information System (SIS) in
the field of police cooperation and judicial cooperation in criminal matters as regards
the entry of alerts by Europol.

6

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0791
COM(2020)796final Proposal for a Regulation amending Regulation (EU) 2016/794,
as regards Europol’s cooperation with private parties, the processing of personal data
by Europol in support of criminal investigations, and Europol’s role on research andinnovation.

6

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0796
Council Recommendation 2020/912 of 30 June 2020 on the temporary restriction on non-essential
travel into the EU and the possible lifting of such restriction, OJ L 208I , 1.7.2020, p. 1–7
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020H0912

EN

148

15,
19,
30, 48EN

Communication from the Commission on the implementation of the Green Lanes under the Guidelines
for border management measures to protect health and ensure the availability of goods and essential
services 2020/C 96 I/01, C/2020/1897.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020XC0324(01)

EN

149

14,
15, 23

EN

ANNEX 17: 2017 PROPOSAL OF THE AMENDMENT OF THE SCHENGEN BORDERS CODE

The purpose of the 2017 proposal was threefold:- to update the time limits applicable to foreseeable events posing a serious threat to internal
security and public policy offering also a solution to those Member States who may need tomaintain border controls in parallel to national measures;- to underline the need of taking into account the voice of the Member States affected by theintended reintroduction of border controls, and finally;- to reinforce the existing procedural safeguards to assure that reintroduction of bordercontrols is a last resort measure, applied only for as long as necessary and justified.

Specific proposals:
Article 25: The proposed changes concerned the length of the maximum time limit for
reintroduction of border controls (1 year instead of 6 months)

Article 27: The proposed changes in Article 27 aimed at reinforcing or introducing newprocedural guarantees for the neighbouring Member States and ensuring that border controls
are a last resort measure. They concerned, among others the following aspects:- Member States have been obliged to submit risk assessment for all notifications concerning
temporary reintroduction of border checks at internal borders,- the Commission has been obliged to issue an opinion on necessity and proportionality ofdecisions on reintroduction of border ion by the Commission in case of prolongations beyond
6 months;

Article 27a: This was a new provision providing for a new special procedure where theserious threat to public policy or internal security exceeds one year. This procedure was to be
used where the Member State is confronted with the same serious threat to the public policy
or internal security beyond 1 year and where ‘commensurate exceptional national measures’are taken within the territory (e.g. state of emergency). It assumed that the Commission
would issue an opinion with regard to such notification and that the Council, taking into
account the said opinion, could recommend a further prolongation of border control for 6
months renewable no more than 3 times.

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EN

EUROPEAN
COMMISSION

Brussels, 27.9.2017
COM(2017) 571 final
2017/0245 (COD)

Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary
reintroduction of border control at internal borders

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EN

EXPLANATORY MEMORANDUM
1.
•

CONTEXT OF THE PROPOSAL
Reasons for and objectives of the proposal

Over the last two years, the European Union has witnessed a significant increase of temporary
reintroduction of border control at internal borders. Since September 2015, border controls
have been reintroduced and prolonged almost 50 times (as compared to 36 cases ofreintroduced border controls in the period 2006-2015168). This was due to the secondary
movements of irregular migrants and the increase of cross-border terrorist threats posing aserious threat to the internal security or public policy of a number of Schengen States. These
serious threats compelled some Member States to prolong reintroduced border control several
times, sometimes until the exhaustion of the current legal time frames.
Already in May 2017 the Commission recognised that new security challenges have arisen in
the past years, as demonstrated by repeated terrorist attacks. In this respect, whilst the current
legal framework has been sufficient to address challenges faced until now, the Commission
started a reflection on whether it is sufficiently adapted to address the evolving security
challenges.
Based on the current Schengen rules, border controls at internal borders are possible forlonger than six months when there are serious deficiencies in the external border managementof a Member State, as demonstrated during a Schengen Evaluation, which put the overall
functioning of the area without internal border control at risk or as a result of the noncompliance of a Member State with a Council decision identifying measures to mitigate therisks in the control of external borders jeopardising the functioning of the Schengen area
(Article 29 of the Schengen Borders Code procedure, as modified by Regulation (EU)2016/1624 of 14 September 2016 on the European Border and Coast Guard)169. In such cases,
the Council, based on a proposal of the Commission, can recommend that one or more
Member States decide to reintroduce border control at all or at specific parts of their internalborders, for a specific period of time, not exceeding six-months periods, renewable threetimes170.
In situations where the serious threat to public policy or internal security is not related to
deficiencies in the management of the external borders as demonstrated during a Schengen
Evaluation, the reintroduction of border control at internal borders is subject to the conditions
and time limits set out in Articles 25 to 28 of the Schengen Borders Code. Accordingly,
border control at internal border can be carried out for up to six months - in case of168

See the list of the reintroduced border controls at internal borders https://ec.europa.eu/homeaffairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-bordercontrol/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf.
169
In line with this procedure, on 12 May 2016 the Council recommended, on the basis of a Commission
proposal, that five Member States most affected by the secondary movements reintroduce border controls atsome of their internal borders. On 12 May 2017 the Council, authorised these five Member States for the thirdand last time to extend these controls until 11 November 2017.
170
With the new European Border and Coast Guard Regulation which has brought new resources and tools (suchas the mandatory vulnerability assessments and their follow up recommendations, and the mandatory pooling ofresources) the EU border management is more resilient to new challenges, should they arise again. This should
significantly limit the grounds for temporary reintroduction of border controls at internal borders in relation to
the situation at the external borders.

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foreseeable events such as international sport or political events (Article 25), or for up to twomonths - in cases requiring immediate action (Article 28). In the interpretation of theCommission, the periods of reintroduced border control under Articles 28 and 25 cancumulate. This means that with regard to decisions on reintroduction of border controls basedon different grounds, each notification is examined individually and on its own merits withthe applicable deadlines applying for each particular case.
Overall, the use of temporary reintroduction of border control shows that the Member States
apply this measure in a responsible manner171. The costs of a non-Schengen simulation clearly
demonstrate that this is always a costly decision for the economy172.
In the past two years, the rules and procedure for prolongation of temporary internal bordercontrol proved however to be insufficiently adapted to address the increased threats to public
policy or internal security. The current rules are also not promoting the use of alternative
measures to mitigate serious threats. Moreover there is a need to ensure that the Member State
intending to reintroduce or prolong border controls cooperates with its neighbouring Member
States. Finally, there is a need to better reflect in the legal framework the obligation for
Member States to assess, well in advance of the decision on the reintroduction of internalborder control, if and how the available alternative measures could address the identified
threat, in line with the Commission Recommendation of 12 May 2017 on proportionate police
checks and cross-border cooperation in the Schengen area, which, among others encouraged
Member States to give precedence to proportionate police checks over the temporary
reintroduction of border control in case of a serious threat to internal security or public policy.
In light of these considerations, the Commission came to the conclusion that there is a need to
update the rules concerning the temporary reintroduction of border control at internal borders.
In line with that conclusion, the objective of the proposal is:–to ensure that the time limits applicable to the temporary border control at internal borders
enable Member States to take, when necessary, the measures needed to respond to a serious
threats to internal security or public policy;–

to introduce better procedural safeguards in order to ensure that the decision on temporary
border control at internal borders or their prolongation is based on a proper risk assessment
and is taken in cooperation with the other Member States concerned;–

To that end, it is proposed that:–the time limit for temporary reintroduction of border control at internal borders for theforeseeable duration of the serious threat is increased up to one year (instead of six months)

171

Between 2006 i.e. the date of adoption of the Schengen Borders Code and 2015, i.e. at the wake of the
migratory crisis, border controls have been reintroduced 36 times and hardly ever have been prolonged, lastingnormally only for a few days or weeks.
172
According to the Commission analysis of direct economic cost of non-Schengen i.e. the situation where theborder controls have been reintroduced for a longer period of time delays at the borders would have a substantial
impact on cross-border transport (notably through road), tourism, public administrations and cross-borderworkers and travellers. For those categories, the direct costs are estimated to range between €5 and €18 billion
per year (or 0.06%-0.13% of GDP), depending on the time spent due to delays. The medium-term indirect costs
of non-Schengen may be considerably higher than those direct estimates, as the impacts on intra-community
trade, investment and mobility would be unprecedented if rolling-back Schengen puts at risk the economic
integration.

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and the limit for the length of prolongation periods is increased from up to 30 days to up to 6
months.
–Member States will prepare and submit a risk assessment assessing how long the identified
threat is expected to persist and which sections of the internal borders are affected, anddemonstrating that the prolongation of internal border control is a last resort measure; ifborder controls are prolonged for more than six months, the Member State will also explain
retrospectively how border control contributed to address the identified threat; in order toguarantee the quality of such risk assessments, the relevant Agencies (European Border andCoast Guard and Europol) will be involved by the Commission.

–a better follow up to the opinion of the Commission expressing concerns on the necessity or
proportionality of border controls and the consultation procedure involving the Commission,
Member States and, as now proposed, relevant Agencies, is put in place; the need forcooperation with the neighbouring Member States affected by the intended border controls
will be better ensured in the existing consultation procedure.

–a new possibility is introduced to extend internal border controls by a maximum period of
two years where the serious threat to internal security or public policy persists beyond the
one-year deadline, provided that it can be attributed to the same grounds (e.g. threat related
to the operation of a cross-border terrorist network) and that commensurate exceptional
national measures are taken within the territory to address the threat (such as the state of
emergency).

In the context of these amendments, the proposal also clarifies the wording determining thedeadline applicable under Article 29 of the Schengen Borders Code.
The proposal does not change the grounds for the temporary reintroduction of border control
at internal borders as envisaged by the Schengen Borders Code.
•

Consistency with existing policy provisions in the policy area

The proposal modifies the general deadlines for temporary reintroduction of border control atinternal borders as set out in Article 25, namely, in case of foreseeable events/threats, while
preserving the current principle of temporary reintroduction of border control and safeguards
applicable thereto, with, on one hand, the Commission having the power (and the duty, incases beyond six months) to take a stance on the necessity and proportionality of the intended
checks and, on the other, the 'consultation procedure' as referred to in Article 27(5) of the
Schengen Borders Code, now to be reinforced by the participation of the relevant Agencies
having the expertise to assess the information submitted by the Member State concerned in
the notification and the risk assessment. Moreover, the criteria for the temporary
reintroduction of border control at internal borders set out in Article 26 of the Schengen
Borders Code will continue to apply.
The proposal strengthens the principle that reintroducing controls at internal borders must be alast-resort measure. Under Article 23 of the Schengen Borders Code, Member States remain
entitled to carry out police checks within the territory, including in the border area, which insome cases can be an effective alternative to the temporary reintroduction of internal bordercontrol. The requirement to present a risk assessment demonstrating that the intended
reintroduction or prolongation of border controls is a last resort measure should further
encourage Member States to consider the use of alternative measures such as reinforced
police measures. In that respect, the proposal will further support the implementation of the

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Commission Recommendation on proportionate police checks within the territory173, where
the Commission specifically encouraged Member States to give precedence to police checks
over the temporary reintroduction of border controls at internal borders.
The proposed changes are consistent with Article 72 TFEU as they do not affect the exerciseof the responsibilities incumbent upon Member States with regard to the maintenance of law
and order and the safeguarding of internal security.
Article 29 of the Schengen Borders Code will continue to offer the only possibility to prolong
border controls at internal borders in case of serious deficiencies in the management of theexternal borders by a Member State as demonstrated by a Schengen Evaluation. Thispossibility has been recently reinforced by relevant provisions in the European Border andCoast Guard Regulation, where the lack of proper follow-up from the side of a Member Stateto a negative vulnerability assessment or the lack of request from a Member State forsufficient support from the European Border and Coast Guard Agency to respond to a specificand disproportionate pressure at its external borders putting at risk the functioning of the
Schengen area, could justify temporary reintroduction of border controls at internal borders(Article 19(10) of the Schengen Borders Code).
•

Consistency with other Union policies

Pursuant to Article 26 of the Schengen Borders Code which continues to apply, any decisionon temporary reintroduction or prolongation of internal border control should take into
account, in particular, the likely impact of such measure on the free movement of persons
within the area without internal border control. In this context, it should be recalled that
Directive 2004/38/EC174 does not contain a right to be free from security checks on theoccasion of crossing the borders at which controls are carried in line with the Schengen
Borders Code. Therefore, the updating of the maximum period of border control at internalborders does not per se imply a negative impact on the freedom of movement; only theabusive use of such possibility could affect the freedom of movement.
To mitigate such risk, it is proposed that besides the existing possibility for the Commission
to voice at any moment its concerns related to the necessity or proportionality of bordercontrols (their reintroduction or prolongation), there will be now an obligation on theCommission to issue an opinion whenever border controls are carried out for longer than six
months. The consultation procedure contains a further safeguard as it should now also involve
the relevant Agencies. The proposed text for the consultation procedure, which would be ledby the Commission, clarified that the views of the Member States affected by such controls
are duly taken into account.
The proposal contributes to enhancing security within the Schengen area by giving Member
States a legal possibility to prolong, where necessary, internal border control to respond to aserious threat to public policy or internal security that justifies such controls.
Updating the Schengen legal framework in light of experience in facing up to new challenges
in order to preserve its capacity to respond appropriately to persistent serious threats to public
173

C(2017) 3349 final.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizensof the Union and their family members to move and reside freely within the territory of the Member States, OJ
158/77 of 30.4.2004.
174

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EN

policy or internal security, offering additional time that might be necessary to address them, isfully in line with the Commission's work set out in the European Agenda on Migration andthe European Agenda on Security.
2.
•

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
Legal basis

The proposal is based on Article 77 (2)(e) TFEU.
The proposal amends Regulation (EU) No 2016/399 of the European Parliament and of theCouncil of 9 March 2016 on a Union Code on the rules governing the movement of persons
across borders (Schengen Borders Code).
•

Subsidiarity (for non-exclusive competence)

Action in the area of freedom, security and justice falls within an area of competence shared
between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, thesubsidiarity principle is applicable by virtue of Article 5(3) TEU, according to which theUnion shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.
The proposal modifies the existing provisions of Chapter III of the Schengen Borders Coderelated to the temporary reintroduction of border control at internal borders, in a limited
manner, with a view to respond to the recent experience in the last years where a number ofMember States prolonged several times the initial periods of reintroduced border control atinternal borders.
The proposal also reinforces the obligations of Member States vis-à-vis neighbouring Member
States, affected by the intended reintroduction or prolongation of border control, as theefficiency of the current provisions in this regard proved to be limited.
The objective of defining the scope, duration and procedure for exceptionally prolonging
temporary controls at specific section(s) of the internal borders, taking into account the
responsibilities of the Member States with regard to public order and internal security as wellas the need to limit controls at internal borders to what is strictly necessary, so as to preserve
the area without controls at internal borders, cannot be sufficiently achieved by the Member
States acting alone, and can be better achieved at the level of the Union. The Union may
therefore adopt the proposed measures, in accordance with the principle of subsidiarity.
•

Proportionality

The proposed changes in the rules on temporary reintroduction of border control at internalborders are proportionate to the objective of protecting public policy and ensuring internal
security in the area without internal border controls.
The proposal fully recognises that under the Schengen rules the temporary reintroduction ofborder control and its subsequent prolongation must remain an exception, subject to specificrules common for the members of the Schengen area.
The proposal is responding to the identified shortcoming in the existing rules as regards
persistent threats to public policy and internal security which have been experienced by some

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Member States in recent years (such as cross-border terrorist threats, secondary movements ofirregular migrants that justified the temporary reintroduction of internal border control).
Based on this experience, it appears that even the practice accepted by the Commission tocombine the maximum time limits for border control at internal borders based on Article 28(events requiring immediate actions) and Article 25 (foreseeable events) may prove to be
insufficient to address certain long-lasting threats.
To that end, the proposal:
1) Extends the general deadline for foreseeable events up to one year.
This maximum deadline is expected to be applied if threats to public policy or internal
security cannot be addressed within a few months; this possibility should not affect the
average length of border control reintroduced based on the most frequent grounds related
generally to sport or high level political events. To recall, within these limits set out by the
Schengen Borders Code the decision on the actual duration of the temporary reintroduction ofborder controls under Article 25 or 28 of the Schengen Borders Code is in hands of theMember State. However, as the scope and duration of the temporary reintroduction of bordercontrol at internal borders should not exceed what is strictly necessary to respond to theserious threat, the Commission can oversee the actual length of such controls and may issue
an opinion in this respect; in case of concerns related to the necessity or proportionality of thereintroduced border controls, or when border control at internal borders is carried out for morethan six months, the Commission is obliged to issue an opinion.
Furthermore, any possible abuse of the updated timeframe will be also addressed under thegeneral powers of the Commission as the guardian of the Treaties.
Moreover, any reintroduction or prolongation of border controls will be subject to risk
assessment which should look into the expected length of the threat and the border sections
affected, assess the available measures and explain why the chosen one is considered to be thebest to address the identified threat. After six months of effective border control, the risk
assessment should also provide an analysis of how the previous prolongation(s) contributed to
remedying the identified threat.
2) The proposal also introduces a possibility exceptionally to prolong internal border control
if the same threats persist beyond one year but only if the serious threat to public policy orinternal security invoked to justify the prolongation of border control is specific enough andcorresponds to commensurate exceptional national measures, in particular a state of
emergency. In order to ensure the extraordinary nature of such further prolongation, a specificpossibility to go beyond the general deadlines in the Schengen Borders Code would require an
opinion by the Commission followed by a recommendation of the Council setting whereappropriate, the conditions for cooperation between the Member States concerned and which
would constitute a prerequisite for any prolongation. The recommendation could concern
periods of up to six months, and could be prolonged no more than three times for up to six
months each time, under the same procedure.
•

Choice of the instrument

The proposal concerns the amendment of a Regulation. As the proposal complements theexisting provisions of Title III, Chapter II concerning the temporary reintroduction of bordercontrol at internal borders of this Regulation, no other instrument than a Regulation would beappropriate.

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3.
•

RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONSAND IMPACT ASSESSMENTS
Impact assessment

The proposed amendment allows for some controlled flexibility within the existing rules,
without altering the logic of the exceptional reintroduction of border control at internalborders. This justifies a simplified analysis of the available options. There is therefore no needfor a fully-fledged impact assessment.
•

Fundamental rights

The proposed amendment respects the fundamental rights and principles set out in the Charterof Fundamental Rights of the European Union, in particular the freedom of movement andresidence (Article 45). The safeguards of Article 3a, Article 4 and Article 7 of the Schengen
Borders Code continue to apply.
4.

BUDGETARY IMPLICATIONS

The proposed amendment has no implications for the EU budget.
5.
•

OTHER ELEMENTS
Detailed explanation of the specific provisions of the proposal

Article 25 is modified as follows:•

The maximum deadline for temporary reintroduction of border control in case of foreseeable
events posing a serious threat to public policy or internal security, as set out in paragraph 4
first sentence of this provision is prolonged from 6 months to 1 year. In line with that, inorder to make the length of renewable periods under this provision more proportionate to theoverall maximum duration of border controls, paragraphs 1 and 3 are also modified andprovide for the extension of possible renewable periods from 30 days to 6 months.

•

The purpose of this modification is to take into account the persistent serious threats topublic policy or internal security (such as cross-border terrorist threats or secondary
movements of irregular migrants that justify temporary reintroduction of internal bordercontrol), which, as demonstrated over the last few years, may require more time to deal with.

•

Paragraph 2 is amended in order to insert the reference to the new Article 27a.

•

An extraordinary possibility of prolonging border control at internal borders beyond the
maximum deadline is added in paragraph 4. Accordingly, where a serious threat to public
policy or internal security persists beyond one year, the border controls can be exceptionallyprolonged for renewable periods of up to six months, and for a maximum period of two
years, subject to the conditions and following the procedure set out in a new Article 27a.

•

The purpose of this modification is to make the updated rules more resistant to the newchallenges.

Article 27 is modified as follows:•EN

In paragraph 1 which is defining the elements of the intended reintroduction of bordercontrol (which, based on Article 25(3), are also applicable to prolongations), a new point aa)
is added introducing a new obligation for the Member States to prepare and share a risk
assessment. Such risk assessment should assess the expected length of the threat and theaffected border sections and demonstrate that border controls are a last resort measure. It
should also report in detail on the coordination with the neighbouring Member States

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concerned by such temporary border control at internal borders. In order to ensure the qualityof this data, the Commission is required to involve the relevant Agency, depending on thethreat underpinning the intended reintroduction or prolongation of border control (i.e. either
the European Border and Coast Guard Agency or Europol).
The purpose of adding this new element is to underline the last resort character of bordercontrols as a measure to address serious threats to public policy or internal security, whichshould be used only if other measures are considered not sufficient to attain the same results.
This objective is reinforced by the specific obligation imposed on the Member States going
beyond the six months period of border controls, to retrospectively demonstrate that thereintroduced border control contributed to addressing the identified threat.
The amended provision also underlines the need of coordination with the neighbouring
Member States affected by the intended border control.
In this context, in point e) wording is added to clarify that the coordination with theneighbouring Member States concerned should take place before the decision on
reintroduction or prolongation of border controls at internal borders.
Furthermore, the last sentence of this paragraph is modified to highlight that the cooperation
with the neighbouring Member States will be subject to the particular attention from theCommission, which may enquire more on that.
•

In view of the specific procedure of prolonging border control beyond one year, thecircumstances under which the Commission is required to issue an opinion, as specified inparagraph 4, are modified accordingly. Following this modification, the Commission or any
Member State may issue an opinion but in case of concerns related to the necessity or
proportionality of the intended border controls or when border control at internal borders is
carried out for more than six months, the Commission is obliged to issue an opinion. Thisobligation is reinforced and updated to take into account the new obligation related topreparing the risk assessment and the role of the Agencies in assessing it.

•

Paragraph 5 which is setting out the details of the consultation procedure between theCommission and the Member States, is also updated to reflect the involvement of the
Agencies. Accordingly, the Agencies are expected to participate in this process. The othermodifications reflect changes in previous paragraphs giving more visibility to the check ofnecessity and proportionality of the intended border controls. Finally, the proposed
modifications aim at ensuring that the temporary reintroduction or prolongation of bordercontrol at internal borders is accompanied in practice by coordination measures between theMember States concerned by such controls.

As mentioned already above, a new Article 27a is added with a view to determining theconditions and procedure to be followed in case of a serious threat to public policy or internal
security which exceeds one year.
•

EN

Paragraph 1 explains that border controls can be exceptionally prolonged beyond one year
where a serious threat to internal security or public policy is sufficiently specific and persists
beyond one year. This provision should be read in the light of Recital 8 which gives moreguidance how the specificity of the threat can be demonstrated. Thus, also taking into
account the criteria for the temporary reintroduction of border control as set out in Article 26,
border controls could be exceptionally prolonged beyond one year to support the exceptional
measures taken at national level to address the persisting serious threat to public policy orinternal security (such as the state of emergency).

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•

Paragraph 2 refers to procedural provisions of Article 27 which should continue to apply(conditions related to the content of a notification, rules on sharing information with theEuropean Parliament and the Council, the right to classify some information).

•

Paragraph 3 and 4 set up the procedure to be followed. Accordingly, such extraordinary
prolongation can be recommended by the Council, taking into account the opinion of theCommission (which is compulsory, in view of the modification in Article 27(4) as describedabove,
andas
reflected
inparagraph3
ofArticle27a).
The prolongation can be recommended three times, for periods of up to six months each time,
following the same procedure. In view of the fact that the need of further prolongation ofborder controls at internal borders beyond one year is likely to be motivated by grounds
which touch on national executive and enforcement powers, and should be corroborated bycommensurate exceptional national measures, it is proposed that the recommendation of theCouncil should not depend on a proposal of the Commission which, given thesecircumstances, would risk relying on very limited information. The opinion of theCommission should however be duly taken into account by the Council.
In line with the previous provisions requiring more involvement of the neighbouring Member
States, it is also proposed that the Council in its recommendation determines, whereappropriate, the conditions of cooperation between the Member States concerned.

Article 2 of the Regulation contains standard conditions on entry into force and scope of
application.

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THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN
UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particularpoint (e) of Article 77(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:(1)

In an area where persons may move freely, the reintroduction of border control at internalborders should remain an exception. The reintroduction of internal border control should
be decided only as a measure of last resort, for a limited period of time and to the extent
that controls are necessary and proportionate to the identified serious threats to public
policy or internal security.

(2)

The identified serious threats can be addressed by different measures, depending on theirnature and scale. The Member States have at their disposal also police powers, as referred
to in Article 23 of Regulation (EU) 2016/399 of the European Parliament and of theCouncil of 9 March 2016 on a Union Code on the rules governing the movement of
persons across borders (Schengen Borders Code)175, which, subject to some conditions,can be used in the border areas. The Commission Recommendation on proportionate
police checks and police cooperation in the Schengen area176 provides guidelines to theMember States to that end.

(3)

In accordance with the provisions of Title III, Chapter II of the Schengen Borders Code,internal border control can be temporarily reintroduced as a last resort measure in case ofa serious threat to public policy or internal security for a limited period of up to six
months - for foreseeable events (Article 25), and for a limited period of up to two months- for cases requiring immediate action (Article 28). These time frames proved to be
sufficient to tackle the serious threats related to the most frequent foreseeable events suchas international sport or high level political events.

(4)

However, experience has shown that certain serious threats to public policy or internal
security, such as cross-border terrorist threats or specific cases of secondary movementsof irregular migrants within the Union that justified the reintroduction of border controls,
may persist well beyond the above periods. It is therefore needed and justified to adjust
the time limits applicable to the temporary reintroduction of border control to the current
needs, while ensuring that this measure is not abused and remains an exception, to be
used only as a last resort. To that end, the general deadline applicable under Article 25 of
the Schengen Borders Code should be extended to one year.

(5)

In order to guarantee that these internal border controls remain an exception, Member
States should submit a risk assessment concerning the intended reintroduction of bordercontrol or prolongation thereof. The risk assessment should, in particular, assess for how
long the identified threat is expected to persist and which sections of the internal borders
are affected, demonstrate that the prolongation of border controls is a last resort measure

175
176

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OJ L 77, 23.3.2016, p.1.
C(2017) 3349 final of 12.05.2017.

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and explain how border control would help in addressing the identified threat. In case ofinternal border control going beyond six months, the risk assessment should also
demonstrate retrospectively the efficiency of the reintroduced border control inaddressing the identified threat and explain in detail how each neighbouring Member
State affected by such prolongation was consulted and involved in determining the leastburdensome operational arrangements.

EN

(6)

The quality of the risk assessment submitted by the Member State will be very important
for the assessment of the necessity and proportionality of the intended reintroduction or
prolongation of border control. The European Border and Coast Guard Agency andEuropol should be involved in that assessment.

(7)

The power of the Commission to issue an opinion under Article 27(4) of the Schengen
Borders Code should be modified to reflect the new obligations on the Member States
related to the risk assessment, including the cooperation with Member States concerned.
When border control at internal borders is carried out for more than six months, theCommission should be obliged to issue an opinion. Also the consultation procedure asprovided for in Article 27(5) of the Schengen Borders Code should be modified in orderto reflect the role of the Agencies (European Border and Coast Guard Agency andEuropol) and focus on the practical implementation of different aspects of cooperation
between the Member States, including the coordination, where appropriate, of different
measures on both sides of the border.

(8)

In order to make the revised rules better adapted to the challenges related to persistentserious threats to public policy or internal security, a specific possibility should be
provided to prolong internal border controls beyond one year. Such prolongation should
accompany commensurate exceptional national measures also taken within the territory
to address the threat, such as a state of emergency. In any case, such a possibility should
not lead to the further prolongation of temporary internal border controls beyond two
years.

(9)

The reference to Article 29 in Article 25(4) should be modified with a view of clarifying
the relation between the time periods applicable under Article 29 and Article 25 of the
Schengen Borders Code.

(10)

The possibility to carry out temporary internal border controls in response to a specificthreat to public policy or internal security which persists beyond a year should be subject
to a specific procedure.

(11)

To that end, the Commission should issue an opinion on the necessity and proportionalityof such prolongation and, where appropriate, on the cooperation with the neighbouring
Member States.

(12)

In view of the nature of such measures, which touch on national executive andenforcement powers regarding serious threats to public policy or internal security,
implementing powers to adopt recommendations under this specific procedure should
exceptionally be conferred on the Council.

(13)

The Council, taking account of the Commission's opinion, may recommend such
extraordinary further prolongation and where appropriate determine the conditions forcooperation between the Member States concerned, with a view to ensuring that it is an
exceptional measure, in place only for as long as necessary and justified, and consistent
with the measures also taken at the national level within the territory to address the same
specific threat to public policy or internal security. The Council recommendation should
be a prerequisite for any further prolongation beyond the period of one year and hence beof the same nature as the one already provided for in Article 29.

(14)

Since the objective of this Regulation, namely allowing the prolongation in exceptional
cases of reintroduced border controls at specific section(s) of the internal borders for thetime period necessary for a Member State to adequately respond to a persistent threat of a

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cross-border nature, is to complement the current rules on temporary reintroduction ofborder controls at internal borders, it cannot be achieved by Member States acting alone;
an amendment of the common rules established at Union level is necessary. Thus, theUnion may adopt measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty on European Union. In accordance with the principle ofproportionality, as set out in that Article, this Regulation does not go beyond what isnecessary in order to achieve those objectives.
(15)

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, as
annexed to the Treaty on European Union and to the Treaty on the Functioning of theEuropean Union, Denmark is not taking part in the adoption of this Regulation and is notbound by it or subject to its application. Given that this Regulation builds upon the
Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decidewithin a period of six months after the Council has decided on this Regulation whether itwill implement it in its national law.

(16)

This Regulation constitutes a development of the provisions of the Schengen acquis, inwhich the United Kingdom does not take part, in accordance with Council Decision
2000/365/EC177; the United Kingdom is therefore not taking part in the adoption of thisRegulation and is not bound by it or subject to its application.

(17)

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/EC178;
Ireland is therefore not taking part in the adoption of this Regulation and is not bound by
it or subject to its application.

(18)

As regards Iceland and Norway, this Regulation constitutes a development of theprovisions of the Schengen acquis within the meaning of the Agreement concluded by
the Council of the European Union and the Republic of Iceland and the Kingdom of
Norway concerning the latter's association with the implementation, application anddevelopment of the Schengen acquis179, which fall within the area referred to in point A
of Article 1 of Council Decision 1999/437/EC.180(19)

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,
the European Community and the Swiss Confederation on the Swiss Confederation's
association with the implementation, application and development of the Schengenacquis181 which fall within the area referred to in Article 1, point A of Decision
1999/437/EC182 read in conjunction with Article 3 of Council Decision 2008/146/EC.183

177

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of GreatBritain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131,
1.6.2000, p. 43).
178
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some ofthe provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).
179
OJ L 176, 10.7.1999, p. 36.
180
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of theAgreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdomof Norway concerning the association of those two States with the implementation, application anddevelopment of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
181
OJ L 53, 27.2.2008, p. 52.
182
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of theAgreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdomof Norway concerning the association of those two States with the implementation, application anddevelopment of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
183
Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European
Community, of the Agreement between the European Union, the European Community and the Swiss

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(20)

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 acquis184 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/EU185.

(21)

This Regulation respects fundamental rights and observes the principles recognised inparticular by the Charter of Fundamental Rights of the European Union.

(22)

Regulation (EU) No 2016/399 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:
Article 1

Regulation (EU) No 2016/399 is amended as follows:(1)

Article 25 is replaced by the following:"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 internalborders for a limited period of up to 30 days, or for the foreseeable duration of
the serious threat if its duration exceeds 30 days, but not exceeding six months.
The scope and duration of the temporary reintroduction of border control atinternal borders shall not exceed what is strictly necessary to respond to theserious threat.
2. Border control at internal borders shall only be reintroduced as a last resort,and in accordance with Articles 27, 27a, 28 and 29. The criteria referred to,respectively, in Articles 26 and 30 shall be taken into account in each case wherea decision on reintroduction of border control at internal borders is consideredpursuant, respectively, to Article 27, 27a, 28 or 29.
3. If the serious threat to public policy or internal security in the Member State
concerned persists beyond the period provided for in paragraph 1 of this Article,
that Member State may prolong border control at its internal borders, taking
account of the criteria referred to in Article 26 and in accordance with Article 27,
on the same grounds as those referred to in paragraph 1 of this Article and,taking into account any new elements, for renewable periods corresponding to

Confederation on the Swiss Confederation's association with the implementation, application anddevelopment of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).
184
OJ L 160, 18.6.2011, p. 21.
185
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of
the Protocol between the European Union, the European Community, the Swiss Confederation and thePrincipality 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 acquis,
relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p.
19).

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the foreseeable duration of the serious threat and not exceeding six months.
4. The total period during which border control is reintroduced at internalborders, including any prolongation provided for under paragraph 3 of this
Article, shall not exceed one year.
In the exceptional cases referred to in Article 27a, the total period may be further
extended by a maximum length of two years in accordance with that Article.
Where there are exceptional circumstances as referred to in Article 29, the total
period may be extended by a maximum length of two years, in accordance withparagraph 1 of that Article."(2)

Article 27 is amended as follows:(i) In paragraph 1, a new letter (aa) is added as follows:"(aa) a risk assessment assessing how long the identified threat is expected topersist and which sections of the internal borders are affected, demonstrating thatthe prolongation of border control is a last resort measure and explaining howborder control would help address the identified threat. Where border control has
already been reintroduced for more than six months, the risk assessment shallalso explain how the previous reintroduction of border control has contributed to
remedying the identified threat.
The risk assessment shall also contain a detailed report of the coordination which
took place between the Member State concerned and the Member State orMember States with which it shares internal borders at which border control has
been performed.
The Commission shall share the risk assessment with the European Border andCoast Guard Agency and Europol, as appropriate."(ii) In paragraph 1, letter (e) is replaced as follows:"(e) where appropriate, the measures to be taken by the other Member States asagreed prior to the temporary reintroduction of border control at internalborders concerned."(iii) The last sentence in paragraph 1 is replaced by the following:"Where necessary, the Commission may request additional information from theMember State(s) concerned, including on the cooperation with the Member Statesaffected by the planned prolongation of border control at internal borders as wellas additional information needed to assess whether this is a last resort measure."(iv) Paragraph 4 is replaced by the following:"4. Following notification by a Member State under paragraph 1 and with a viewto consultation provided for in paragraph 5, the Commission or any otherMember State may, without prejudice to Article 72 TFEU, issue an opinion.
Where the Commission has concerns as regards the necessity or proportionalityof the planned reintroduction of border control at internal borders or where it
considers that a consultation on some aspects of the notification would beappropriate, it shall issue an opinion to that effect.

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Where border control at internal borders has already been reintroduced for six
months, the Commission shall issue an opinion.
(v) Paragraph 5 is replaced by the following:"The information referred to in paragraph 1 and any Commission or Member
State opinion referred to in paragraph 4 shall be the subject of a consultation led
by the Commission. Where appropriate, the consultation shall include joint
meetings between the Member State planning to reintroduce border control atinternal borders, the other Member States, especially those directly affected bysuch measures and the relevant Agencies. The proportionality of the intended
measures, the identified threat to public policy or internal security as well as theways of ensuring implementation of the mutual cooperation between the Member
States shall be examined. The Member State planning to reintroduce or prolong
border control at internal borders shall take the utmost account of the results ofsuch consultation when carrying out border controls.
(3)

A new Article 27a is added:

Specific procedure where the serious threat to public policy or internal security
exceeds one year
"1. In exceptional cases, where the Member State is confronted with the same serious threat
to public policy or internal security beyond the period referred to in Article 25(4) first
sentence, and where commensurate exceptional national measures are also taken within the
territory to address this threat, the border control as temporarily reintroduced to respondto that threat may be further prolonged in accordance with this Article.
2. At the latest six weeks before the expiry of the period referred to in Article 25(4) first
sentence, the Member State shall notify the other Member States and the Commission that it
seeks a further prolongation in accordance with the specific procedure laid down in this
Article. The notification shall contain the information required in Article 27(1)(a) to (e).
Article 27 paragraphs 2 and 3 shall apply.
3. The Commission shall issue an opinion.
4. The Council, taking due account of the opinion of the Commission, may recommend that
the Member State decide to further prolong border control at internal borders for a periodof up to six months. That period may be prolonged, no more than three times, for a further
period of up to six months. In its recommendation, the Council shall at least indicate theinformation referred to in Article 27(1) (a) to (e). Where appropriate, it shall determine theconditions for cooperation between the Member States concerned."
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 in accordance with the Treaties.

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Done at Brussels,

For the European Parliament
The President

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For the Council
The President

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