EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

Introduction

On 12 May 2016, the Council adopted, on a proposal by the Commission, an Implementing Decision setting out a Recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk. It was the first time that the safeguard procedure of Article 29 of the Schengen Borders Code was used. The combination of serious deficiencies in the management of the external border by Greece at that time and the important number of unregistered migrants present in Greece who may have sought to move irregularly to other Member States created exceptional circumstances constituting a serious threat to public policy and internal security and endangering the overall functioning of the Schengen area.

This Recommendation was addressed to five Schengen States (Austria, Germany, Denmark, Sweden and Norway) and concerned a limited number of internal border sections in these States.

The Recommendation allowed for the maintenance of targeted and proportionate controls for a period of six months, namely until 12 November 2016.

Under Article 29 of the Schengen Borders Code, this period can be prolonged in accordance with the conditions and procedure set out in the same Article.

Current situation

Following the Council Recommendation of 12 May, the five Schengen States concerned notified the Commission that they would carry out the recommended temporary internal border control.

In its report of 28 September 2016, which built on information received from the Schengen States concerned, as foreseen by the Recommendation, the Commission found that the border controls have remained within the limits of the Recommendation: controls were limited to the identified migratory routes and threats, they were targeted and limited in scope, frequency, location and time, to what was strictly necessary to address the threat identified, and, while a certain economic impact could not be excluded, they affected as little as possible the crossing of the internal borders by the general public. Furthermore, based on the information at its disposal at that time, the Commission concluded that it saw no need for proposing amendments to the Recommendation.

On 18 and 21 October 2016, the Schengen States concerned reported for the second time to the Commission on the implementation of the Council Recommendation. The information provided follows a trend similar to the data provided for the first report (reduction in the number of persons to whom entry is refused, as well as in the number of asylum applications received) and thus shows a progressive stabilisation of the situation. On 20 October the five Schengen States wrote to the Commission stressing the need for allowing the continuation of the temporary border controls. Slovenia wrote to the Commission as well on 6 October to express concern about the possible continuation of border controls at the Austrian-Slovenian border.

The triggering of Article 29 of the Schengen Borders Code and the adoption of a coordinated approach at EU level to temporary border controls were among the initiatives envisaged by the Back to Schengen Roadmap and which aimed at creating conditions for lifting all internal border controls and returning to a normally functioning Schengen area by the end of 2016.

Despite the sharp decrease in the number of arrivals of irregular migrants and asylum seekers in the European Union notably due to the implementation of the EU-Turkey Statement, there is still a significant number of irregular migrants (about 60 000) stranded in Greece who may reasonably be expected to seek to move irregularly to other Member States.

In addition, the total number of asylum applications received by the Schengen States concerned by the Recommendation remains a relevant factor, even if it is not comparable with the number of applications received at the same moment last year. The large numbers of arrivals of irregular migrants and asylum seekers in the European Union since autumn 2015 have posed substantial challenges to all EU Member States which must be taken into account. These challenges related to ensuring proper housing and access to education and health systems to those who have arrived since last year. Moreover, the processing of the remaining backlog and further arrivals and requests for protection put a continuous strain on the functioning of the administrations of these States.

Furthermore, other actions foreseen by the Back to Schengen Roadmap, despite significant progress, still need time to be fully implemented and the corresponding results confirmed.

In this regard, the European Border and Coast Guard has been adopted and entered into force within record time. However the rapid reaction pools (human resources and technical equipment) and the rapid return pools need to be established and operational by, respectively, 7 December 2016 and 7 January 2017. The first vulnerability assessments should be concluded in the first three months of 2017.

The implementation of EU-Turkey Statement continues to deliver results. Nevertheless on average 107 persons continue arriving daily at the Greek islands. It is important to continue to ensure that the Statement functions on a sustained basis. Moreover, there remains an on-going need for the cooperation agreed upon in the Statement of the Western Balkans Route Leaders meeting, as evidenced by the continuing number of arrivals in Serbia.

The exceptional circumstances that constitute a serious threat to public policy and internal security and put at the risk the functioning of the whole Schengen area thus persist.