EUROPEAN COMMISSION Strasbourg, 14.12.2021 SWD(2021) 462 final COMMISSION STAFF WORKING DOCUMENT



IMPACT 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}



Table of contents 1.Introduction: Political and legal context 2.Problem definition 2.1.What is/are the problems? 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 2.2.What are the problem drivers? 2.3.How likely is the problem to persist? 3.Why should the EU act? 3.1.Legal basis 3.2.Subsidiarity: Necessity of EU action 3.3.Subsidiarity: Added value of EU action 4.Objectives: What is to be achieved? 4.1.General objectives 4.2.Specific objectives 5.What are the available policy options? 5.1.What is the baseline from which options are assessed? 5.2.Description of the policy options 5.3.Options discarded at an early stage 6.What are the impacts of the policy options?

6.2.Impacts on fundamental rights 6.3.Other impacts 7.How do the options compare? 8.Preferred option 8.1.Option 2 8.2.REFIT (simplification and improved efficiency) 9.How will actual impacts be monitored and evaluated? Annex 1: Procedural information 1.Lead DG, Decide Planning/CWP references 2.Organisation and timing 3.Consultation of the RSB 4.Evidence, sources and quality 5.Analytical Methods Annex 2: Stakeholder consultation 1. Schengen Forum 2. Minutes: Expert meetings on measures allowing for a more effective cooperation within the Schengen Area, 14 and 22 January 2021 3. Public consultation Annex 3: Who is affected and how? 1. Practical implications of the initiative 2. Summary of costs and benefits

Annex 4: Relevant inputs and studies Annex 5: Conclusions of the Chair – Schengen Forum 30 November 2020 Annex 6: List of reintroduced border checks at internal borders Annex 7: Facts on the evolution of threats 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) Annex 9: Examples of good practices during the COVID-19 pandemic Annex 10: Use of police checks and new technologies within the last five years Annex 11: Dutch @MIGO-BORAS system Annex 12: Reports received by Member States with internal border control in place between March and June 2020 in accordance with Article 33 SBC Annex 13: API and PNR Annex 14: New IT Architecture at the external borders Annex 15: Border Areas Annex 16: List of legal acts and proposals mentioned in the Impact Assessment Annex 17: 2017 Proposal of the amendment of the Schengen Borders Code 1.CONTEXT OF THE PROPOSAL 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS 4.BUDGETARY IMPLICATIONS 5.OTHER ELEMENTS





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 System eu-LISA EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice EURODAC European Asylum Dactyloscopy Database Europol European Union Agency for Law Enforcement Cooperation FRA Fundamental Rights Agency Frontex European Border and Coast Guard Agency (EBCG) PNR Passenger Name Record SAC Schengen Associated Countries: Iceland, Liechtenstein, Norway and Switzerland SBC Schengen Borders Code Schengen Handbook Practical Handbook for Border Guards - ANNEX to the Commission Recommendation C(2019)7131 SIS Schengen Information System TFEU Treaty on the Functioning of the European Union VIS Visa Information System WHO World Health Organisation YEA Your Advice Europe



1.Introduction: Political and legal context The Schengen area without controls at internal borders (the “Schengen Area”) is one of the most 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 and services 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 survey , Europeans value Schengen very much, in particular the easier trade and travel, and the absence of passport control. This is confirmed 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 Convention . Originally conceived as intergovernmental cooperation, it became a fully-fledged 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 Ireland and to four Schengen Associated Countries (SAC). The Schengen area is supported by a significant body of measures to compensate for the absence 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 the areas of external borders (external border management, common visa policy), and compensatory measures (police cooperation, return policies and the Schengen Information System (SIS)). A robust monitoring mechanism 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 Code (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, in particular speed limits not based on road-safety considerations. The abolition of checks at internal borders implies that measures having an effect equivalent to border checks are also prohibited (Article 23(1) SBC). While no criteria are laid down in the law as to when measures have such equivalent effect, Article 23(1) SBC (and the relevant case-law ) provides a non-exhaustive list of checks within the territory that are considered admissible, suggesting that in particular measures exclusively linked to the fact that a person is crossing the border are proscribed. However, the Member States continue to be able to carry out any other measures related to the exercise of police powers under national law. Moreover, Member States may temporarily reintroduce border checks at their internal borders 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 the exercise 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” . 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 of migration 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 2020 . In the Pact on Migration and Asylum , the Commission announced the establishment of a dedicated Schengen 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 first time on 30 November 2020, gathered representatives of the Member States and of the European 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 and 2019 . This Strategy should build on the efforts of the Commission to restore Schengen and to make it stronger, and is part of the wider exercise of making Europe more resilient, in the aftermath 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, with conclusions to be drawn from the negotiations on the Commission’s proposal of 2017 (hereafter the “2017 proposal”) , and a proposal to reform the Schengen evaluation mechanism 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 take stock of the initiatives and measures that are currently being implemented in the management of 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 and Authorisation System (ETIAS) and Interoperability) . 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 Europol . 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 internal border 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 of foreseeable 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 the power to take a stance on the necessity and proportionality of the checks. 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 2021 . 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 management of some external borders, terrorist attacks and, most recently, COVID-19. According to Eurostat , 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 the previous year. To compare, in 2018 there were 699,000 applications lodged in the EU, including 631,000 first time applications . 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 be linked with Schengen only in a limited manner - see Annex 7). Finally, the fast spread of the 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 – 2019 . 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 Council (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 a number 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 to internal security and public policy and may help the implementation of other legitimate measures (for instance travel restrictions), the geographical scope and duration of these border checks 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 is outlined 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 area and the Recommendation of 3 October 2017 on the implementation of the provisions of the Schengen Borders Code on a temporary reintroduction of border control at internal borders in the Schengen area , the proposal for an amendment 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 Parliament , 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) 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 2021) Denmark 4 January 2016 – 11 November 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 and goods; -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 some to reintroduce internal border checks, thus putting the overall functioning of Schengen at risk. The existence of these problems is linked with the following specific issues: 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 that would interfere less with the movement of goods and persons across borders are not or under-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 are often 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 to public health ·Response time to mitigate impacts – unavailability of mitigating measures from the outset b) 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 are often 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 This problem refers to a number of situations over the last 6 years where Member States have decided 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 free movement, 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 an area 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 border controls, asylum, immigration and the prevention and combating of crime.” While the Schengen Borders Code abolishes border checks at internal borders (Article 22) and requires Member States to remove any obstacles to traffic at land borders (Article 24), the conditions for the exercise of the right of free movement and residence (both temporary and permanent) in the EU for EU citizens and their family members are set out in Directive 2004/38/EC . The freedom of movement of EU citizens in the internal market is the basis for allowing the absence 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 to third 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 a number of Member States carried out persistent border checks at their internal borders or on some sections of these borders, provide evidence on how ineffective these checks often are. This will be analysed in point b) below. 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 maintained or re-reintroduced them again even during periods where the epidemiological situation across the EU was comparable between the Member States. The identification of new variants of the virus at the end of 2020 led again to another wave of reintroductions of border checks at internal 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 to free 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 the Member 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 severe congestion in the border areas, in particular in spring 2020, as many Polish citizens wanted to return to Poland. Long queues built up at border crossings 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 with Slovenia. Unaware of the fact that Italians were not allowed to move anyway, Slovenian authorities closed overnight the secondary crossing points (sometimes by installing large rocks in the middle of the street) and leaving 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, the fact that one of the crossing points was on a highway meant that pedestrians 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 cross-border regions - An empirical report covering the period March to June 2020’ 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 frequent changes in the applicable rules. The public consultations provided some insights to illustrate this challenge. According to Eurostar ‘The clarity and reciprocity of border restrictions, and their joint implementation, is essential [...]’ . ‘[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 to have to interpret rules and regularly fail to provide answers with confidence’ . ·Perspective of the cross-border regions The uncoordinated response has affected in particular cross-border regions where the socio-economic ties between EU citizens and companies based in different Member States are very strong. The sudden reintroduction of border controls also affected the local capacities to ensure essential services on both sides of the border. These problems illustrate the fact that borders should be understood in the first place not as lines separating national sovereignties, but as areas where people live together. As reported by DG REGIO , 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 and produce 30% of the EU's GDP. Therefore, any changes as regards the possibility to cross the borders without controls are socially and economically significant. The specific impacts of measures 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 on cross-border regions - An empirical report covering the period March to June 2020’ and the ‘20 case studies covering the period March to June 2020’ accompanying it, the measures taken by the Member States have had a significant impact on different elements of cross-border ties. The most relevant for this Impact Assessment relate to the area without border checks at internal borders, and concern primarily cross-border workers. The reintroduction of different measures at internal borders have been particularly visible in the so called ‘twin-cities’, where the reintroduction of checks at internal borders affected all aspects of such entities. There are 37 entities of this kind (i.e. cities that extend over the territories of two Member States) in the EU. The adopted measures triggered a lot of discussion and local initiatives. For instance, in the High Rhine Region, the citizens’ dialogues carried out in Summer 2020 led to the conclusion that 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 to minimise the number of regimes applicable in the cross-border regions . 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 and businesses. This aspect also demonstrates the need for closer cooperation. In this context, the Euregio 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 a position 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 the policymaking process at Member State and Union level. ·Effectiveness and efficiency of border checks in addressing threats to public 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 the context of an epidemiological threat is not evident. The WHO expressly holds that “[t]ravel bans 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 and social impact.” Several media outlets cite WHO officials calling on States to keep their borders open. Considering the side-effects of border closures, Michael Ryan, the WHO emergencies director, held that “[c]ontinuing to keep international borders sealed is not necessarily a sustainable strategy for the world’s economy, for the world’s poor, or for anybody else” . Therefore, the WHO continuously advised against travel and trade restrictions to countries experiencing COVID-19 outbreaks . However, it recognised that “[t]ravel measures that significantly 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, to rapidly 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 in duration, and be reconsidered regularly as the situation evolves.” 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 travel bans . ·Response time to mitigate impacts – unavailability of mitigating measures from the outset From the start of the pandemic, the Commission worked closely with the Member States to ensure 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 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, organised on an ad-hoc basis, remained thus voluntary, without any basis in the applicable law. Furthermore, the necessary coordination instruments, such as guidelines and recommendations 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 a measure Measure 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 travel to 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 non-essential travel to the EU, on the facilitation of transit arrangements for the repatriation 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 2020 and beyond: Communication: COVID-19 Towards a phased and coordinated 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 Commission Communication recommending a partial and gradual lifting of travel restrictions to the EU after 30 June, based on a common coordinated approach (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). 4 September 2020 Commission proposal for a Council Recommendation to ensure that any measures taken by Member States that restrict free movement due to the 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 2020 Commission Recommendation on a coordinated approach to travel and 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-19 . Some stakeholders (primarily carriers associations) regretted the absence of contingency 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 be considered 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 and essential services, stakeholders (the International Road Transport Union) voiced concerns related to “several hours of waiting time at some newly created intra-EU borders” .

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 other challenges over the last few years. In particular, the last six years have seen persistent border checks 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 have changed (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. Since the very beginning of Schengen , Member States have always had the possibility to reintroduce temporary checks at internal borders. In the Schengen Borders Code, adopted for the first time in 2006, a specific procedure and time-limits depending on the character of the event posing a threat (foreseeable/non-foreseeable) were set up . At first, Member States used the possibility of temporary reintroduction of border checks at internal 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 other events 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 the terrorist 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 is available on the website of DG HOME (see also Annex 6). Five Member States (Austria, Germany, Denmark, Sweden and Norway) referred to the extraordinary migratory pressure to justify the reintroductions between September 2015 and May 2016. Between May 2016 and November 2017, the prolongations followed the Recommendation of the Council adopted in the special procedure of Article 29 of the Schengen Borders Code, in view of the persistent serious 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 external borders 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 2015. 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 (and COVID-19). Border checks at internal borders are not sufficient to address the underlying threats. At the same 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 the private sector but also for the national administration, which has to engage resources on a quasi-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 improved. 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 some circumstances (e.g. beginning of COVID-19, i.e. in the circumstances different from the ones of 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 of phasing out from internal border controls and substituting them by other measures, remain a main challenge. ·Insufficient use of compensatory measures for the absence of border controls at internal borders In particular thanks to progress on the technological side, a number of measures other than border 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 to achieve 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 border checks. Based on the feedback received from the Member States in the consultation process , most of the Member States have access to such measures have the possibility to deploy new technologies 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 the Royal Marechaussee 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 and police cooperation in the Schengen area. While the Recommendation concerned in particular 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 the Commission that police checks are a valid alternative to border checks at internal borders, in particular 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 @MIGO-BORAS . 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 be in 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 border services, 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 a high 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 their support for reasonable automated control measures. 1.2.2.Discrepancies in the application of travel restrictions at the external borders 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, in March 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 with a highly problematic epidemiological situation which could have increased the risk for the entire 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 Recommendation . 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 the 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 travel from 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 the relevant Annex to the Council Recommendation. This concerned in particular Bulgaria (18 non-listed third countries), Cyprus (16), Greece (4), Italy (5), Lichtenstein (5), Malta (6), the Netherlands (5) and Poland (6). Furthermore, by the end of March 2021, a number of Member States were already using or planning 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 health certificate , 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 to achieve the objective pursued” , 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 procedure . However, this proposal and a second one extending the provisions to third country nationals legally staying or residing in the European Union 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 the country, 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 the Council 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 that can 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 the 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 the stakeholders’ consultation would like coordination in crisis situations to be reinforced. Similarly, being asked if a coordination 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.Likewise, 90% of the business associations and company/business organisations considered the coordination at EU-level of measures applicable at the external borders of the EU in response to common threats such as a pandemic as beneficial. 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 the trust and impacting the credibility vis-a-vis third countries (2.1.2). While the size of the recovery plan for rebuilding post-COVID-19 Europe amounting to EUR 1.8 trillion may give an indication when assessing the overall damage caused by the pandemic to the EU, there is no 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 well as 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 the checks 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 the impact of the border controls. As regards the internal border checks that were reintroduced during the COVID-19 crisis, the situation 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 their contents. For more information see Annex 12. Given this lack of specific data, the efforts of calculating the cost of non-Schengen by the Commission in 2016 and by the European Parliament in 2017 remain the main point of reference to demonstrate the impacts of border checks if maintained for a longer period of time, irrespective of their ground. Therefore, this section uses them as a basis for assessing the impacts 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. 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’ , the Commission estimated in 2016 that a full reestablishment of border controls to monitor the movement of people within the Schengen area would generate immediate direct costs for the EU economy in a range between EUR 5 and EUR 18 billion annually . 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 value and 1,700 million tonnes in volume, the highest and most immediate impact of border controls 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) on the same topic even suggests annual costs of between EUR 6.5 billion and EUR 13 billion for the road freight sector if internal border controls were reintroduced at all internal borders. In the case of limited reintroductions by the Member States having internal border controls in place in April 2016, the annual costs for the road freight sector are estimated to reach EUR 0.7 billion to EUR 1.3 billion annually . Data on the specific situation of France indicated that internal 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 export . 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 high percentage of the costs. Sectors indicated as potentially particularly affected were agricultural 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 the efficient development of EU value chains and the competitiveness of the EU economy as a whole. 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 border checks at all internal borders would cost commuters and other travellers between EUR 1.3 and EUR 5.2 billion in terms of time lost . More importantly, long waits at the border would 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 their work place by more than 5,000 workers if the waiting time increased by 10 minutes, or by more than 10,000 workers if the waiting time increased by 20 minutes, which would equal an economic loss of EUR 150 million or EUR 300 million respectively (without accounting potential unemployment-related costs) . 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 2025 . This would lead to a decrease of the Schengen area’s GDP by 0.8%, equivalent to more than EUR 100 billion . For France alone, the loss would amount to 0.5% of the GDP, equalling EUR 10 billion . According to another study , the reintroduced internal border controls in the Schengen area notified to the European Commission from summer 2015 until April 2016 have reduced the trade 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 this study suggests, that smaller and peripheral States would be much stronger affected than the larger and/or central ones. According to another study specifically with regard to Germany, developing the hypothesis of permanent 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 EU . Specific data on the costs of border controls for different sectors is difficult to collect as the facilitation 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 vehicles. 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 border controls within the Schengen area” as one of the gaps in the full implementation of Europe’s Single Aviation Market . 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” . The persistence of border checks creates significant challenges for the airport operators. As highlighted by ACI (Airport Council International) “the reintroduction of border control at internal 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” .

·Impacts on the cross-border regions While not all regions have been affected equally , it is clear that the economic and social impacts of persisting border checks are the most visible on a local scale. For instance, the Øresund 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) . According to the Oresundsinstituttet , 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 Board demonstrated that 39% of the nearly 400 interviewed considered changing the job and seeking employment in their country of 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 indicates that 64% experienced an increase in stress, and 70% were strongly affected by not knowing when they would arrive . A Commission case study of 2017 on this specific border region confirms these effects : the border 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 and Industry 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 the remaining share relates to the shrinking market potential (e.g. reduced number of potential jobs for employees; smaller pool of workers available to employers) . 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 million . As a concrete example for the impact on one Member State serves the data available for the commuters residing in France, the country of origin of most commuters in the EU . 350,000 French residents cross the borders on a daily basis to work in Belgium, Germany, Luxembourg, Switzerland or Spain. 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 border crossing, 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 million . ·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 physical establishment 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) . Notably, the costs for the physical establishment of border controls have a higher impact on the total costs when the period of the reintroductions is shorter . As the study assesses a scenario of a two-year reintroduction and an indefinite reintroduction, the situation experienced during the COVID-19 pandemic of Member States reintroducing border controls repetitively over short periods of time, sometimes not continuously, might be different. As these costs fall under the exclusive responsibility of the national administrations, they are not reported to the Commission. ·Impacts on border management capacity The reintroduction of border checks at internal borders requires significant resources. In times of 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 since 2015. 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 with the long-lasting border checks introduced by the six Member States referred to above, these border 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 trade by 24% in Q2 and Q3 2020, while GDP fell by 7%. 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 a lack 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 the measures taken. In some “twin cities” (see Map 1 ) 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 and supermarkets were located on the other side of a hard border. The decision of Spain and Portugal in response to the first wave of COVID-19 to close the border, leaving open only eight border crossings 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 an idea 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 were completely divided. ” 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, in some 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, the attractiveness 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 vulnerable due to their status. Not being able to perform work cross-border raised the issue of the State competent for taxation purposes . To address this issue, some Member States adopted temporary arrangements: for instance, Belgium and the Netherlands adopted an agreement 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 “This Title [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 and order and the safeguarding of internal security”. Accordingly, Member States remain in the best 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 the EU.

This approach has been particularly visible during the COVID-19 crisis where internal border checks have been reintroduced repeatedly despite their impact on the economy and the fact that the added value of that measure in containing the spread of the virus is not proven and even largely contradicted by the European Centre for Disease Prevention and Control (ECDC) . 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 problem . For more information on the evolution of these threats from the perspective of the Commission see Annex 7. The effectiveness of such controls is difficult to quantify, as Member States only have limited reporting obligations and in many cases prefer not to share comprehensive data on national security operations. The disproportionality furthermore results from the fact that the reintroduction of internal border controls generates in the long term high costs (see 2.1.3.1), while there is an indication that alternative measures such as police checks or bilateral agreements and arrangements for the 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 and select those to be stopped and examined without the need for a continuous physical control procedure at the border. Any difficulties reported by some Member States as regards the application of the readmission agreements should not justify the reintroduction of internal border 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 the other 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, a mutual 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. the threat 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 even 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 a result, until the ad hoc initiative of DG HOME to organise conferences twice a week and the activation of the Integrated Policy Crisis Response (IPCR) 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 the border measures taken in response to the COVID-19 pandemic in the Council very difficult as none of the existing Council formations had a sufficiently broad scope. IPCR focused at the start 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 border management. Therefore, the issue lies not on the efficiency of the IPCR which proved to be a useful tool but on the lack of a pre-agreed and formalised institutional answer to a health crisis. 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 Recommendation and the recent workshop organised as a part of the public consultation process for the Schengen Strategy , 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 and beyond. Even if many Member States claim that the police checks carried out on their territory comply with the Recommendation and that the rules described therein provide for sufficient flexibility , 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 that the conditions of use of compensatory measures considered as alternatives to border checks (use of new technologies such as video surveillance, number plate recognition systems or drones) are not clearly specified or defined. For some, these measures should not be used instead 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 internal borders would be unacceptable . Similarly, 72.66% of 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. Furthermore, any future developments concerning the collection of Advanced Passenger Information (API) data on intra-Schengen air connections could be challenged under the current 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 flows . For more information on API and PNR see Annex 13. 1.2.7.Absence of rules concerning the application of extraordinary measures at the external borders during crisis situations affecting several Member States The Schengen rules provide for common standards concerning border checks on persons at border crossing points and border surveillance at the external borders. These checks are based on the verification of the entry conditions for third country nationals. The idea behind these rules 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 a threat to public health, which has to be assessed on a case-by-case basis. In March 2020, the Commission called upon the Member States to apply a temporary travel restriction to all non-essential travel from third countries in order to coordinate practices in this regard and provided a list of derogations per category of persons that should be exempted from the travel restrictions . Council Recommendation of 30 June 2020 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 from other third countries to access the European Union. For this reason, on 22 February 2021 , 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, with state of play 16 April 2021, 13 Member States were open for non-essential travel from a wide group 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 world-wide vaccination programme, similar problems may occur at any moment in the future. This means that the absence of ‘ready to use’ contingency procedures and safeguards can again become a problem any time. 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 to address the identified threat and on the other hand may be sometimes concerned that the available 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 to convince Member States to go back to a real Schengen area, the only (limited) step in this direction has been made by Germany that has reduced the scope of the long-lasting border checks at its internal borders, by lifting in spring 2018 such checks with regard to the air connections 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)120 2017 – 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 at internal 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 Forum

The 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 internal borders 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, ECRIS-TCN and interoperability of information systems reinforcing the relation between pertinent databases), as mentioned above and further explained in Annex 14, are expected to improve the controls at external borders and as such should help in rebuilding trust among the Member States. However, even a timely implementation of these new rules will not address the concerns of Member States linked to a perceived unsatisfactory level of security due to cross-border crime and terrorism. Moreover, based on the five years report on the functioning of the Schengen Evaluation Mechanism 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 adopted , 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 year , would help to expand the available tools for compensatory measures to border checks at internal borders. These initiatives will be an important step to boost the use of alternatives 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 the exercise of police powers and the use of new technologies and measures having effect equivalent 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 absence of any controls on persons, whatever their nationality, when crossing internal borders, and also the measures concerning the checks to which persons crossing external borders are subject. This means that any legislative proposal following this impact assessment would be based 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, the subsidiarity principle is applicable by virtue of Article 5(3) TEU, according to which the Union 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. Furthermore, even where legislative action would not be considered appropriate, the integrity of 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 can be 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 the principle 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 the entire 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 at internal 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 the strongest 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 move freely without unjustified or disproportionate hurdles within the Schengen area. To this end, 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 the external borders undermining the trust and impacting the credibility vis-a-vis third countries (2.1.2), need to be addressed [ Figure 2 presents the logic of intervention to attain this objective]. Figure 2 - Intervention logic 4.2.Specific objectives The identified problems concerning i) the border checks at internal borders which are long-lasting 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 for solutions 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 other Member 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 and provide 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 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, to rapidly implement effective preparedness measures”, but “must be based on a careful risk assessment, be proportionate to the public health risk, be short in duration, and be reconsidered regularly as the situation evolves.” 1.2.9.Application of mitigating measures and specific safeguards for cross-border regions This objective refers to the need for a quasi-automated application of safeguards, should the temporary 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 the functioning of cross-border regions and, thus, on the Internal Market are limited. The mitigating measures refer in particular to the guidelines and recommendations developed in 2020 in relation to the COVID-19 crisis. More concretely, once this objective is achieved, the good practices identified in the DG REGIO study referred to above for cross-border entities such as twin cities and cross-border workers should be used more widely (for examples see Annex 9). 1.2.10.Uniform application of measures at the external borders in particular in case of a threat to public health This objective refers to the need for a uniform application of extraordinary measures at the external 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 the trust 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 internal borders, 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 become border 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 States concerned (see Table 1 above) lift border checks at their internal borders as soon as possible.

The costs of non-Schengen as well as the case studies mentioned earlier concerning the impact 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, to address 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 COVID-19 crisis and the evidence available concerning the impacts on the cross-border regions. According to the DG REGIO Eurobarometer 2020 , 58% of Europeans think more influence of 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 to quantify 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 (soft law measures). Option 2 consists in a targeted amendment of the Schengen Borders Code, accompanied by some 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 the decision 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 the reintroduction of border checks at internal borders or by simply removing the possibility to reintroduce border checks at internal borders from the legislation, and thus imposing the use 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 a pandemic 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. 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 to continue, 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’ , nor the 2017 legislative proposal to amend the Schengen Borders Code 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 as well as the role of border checks in containing COVID-19 demonstrate that border checks are either 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/proportionality of border checks at internal borders and to launch infringement proceedings, the problem that border 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 action needs 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 long-lasting 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 of compensatory 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’ 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 the relevant Recommendations (in particular of the 2017 Recommendation on proportionate police checks). Under this option the ‘contingency planning for Schengen’ (ref. objective 4.2.1) would build on 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 Schengen area: 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 border checks 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 and recommendations are adopted on an ad hoc basis (ref. objective 4.2.2). This element is particularly 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, the Strategy 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 the categories 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 to demonstrate the essential character of the travel and deal with questions related to the transit of 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 at internal borders on the same grounds for a certain period (e.g. at least 1]year), and on the other hand, could complement the 2017 Recommendation on proportionate police checks and police 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 border areas. Table 4 – Mapping of objectives and measures under Option 1 Objectives Measures Persons and goods can move freely [without unjustified or disproportionate limitations] within the Schengen area 4.2.1 Creation of a contingency planning for Schengen The Schengen Strategy recalls the existing rules concerning the reintroduction of border checks and calls for the use of compensatory measures instead of border checks at internal borders as well as for minimum mitigating measures, in particular for the border regions. 4.2.2 Application of mitigating measures and specific safeguards for cross-border regions The Schengen Strategy provides an overview of relevant guidelines/recommendations adopted in response to COVID-19. It also recalls the need of taking due account of the interests of cross-border regions when deciding on the application of specific measures. 4.2.3 Uniform application of measures at the external borders The Schengen Strategy identifies the criteria to be taken into account by the EU and Member States when deciding on travel restrictions for non-essential travel of third country nationals and derogations therefrom. It provides also guidelines for the type of evidence that could be presented during border checks to demonstrate the essential character of the travel. The IPCR is consulted and involved all along the implementation of the Strategy. 4.2.4 Increased use of the compensatory measures to address the identified threats The 2017 Recommendation on proportionate police checks and police cooperation in the Schengen area, is further developed in the Schengen Strategy to address some frequently asked questions from the Member States as regards the use of police checks and new technologies in the border areas. 4.2.5 Lifting the long-lasting border checks at internal borders The Schengen Strategy takes a stance on the necessity and proportionality of check