EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

In 2015, a number of EU Member States reintroduced temporary border controls, following record flows of migrants arriving in the European Union and important secondary movements. This situation constituted a serious threat to public policy or internal security in several Schengen States.

Threats were due to serious deficiencies in ensuring efficient border control at parts of the Union's external border, which put the functioning of the entire Schengen area at risk. Therefore, the Council recommended, on a proposal from the Commission, that the five Schengen States the most affected (Austria, Germany, Denmark, Sweden and Norway) maintain proportionate temporary border control at a limited number of their internal border sections, for a period of six months.

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, which aimed at creating conditions for lifting all internal border controls and returning to a normally functioning Schengen area as soon as possible.

On 11 November 2016, the Council adopted, on a proposal by the Commission, an Implementing Decision under Article 29 of the Schengen Borders Code setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk. It was considered that the consequences of the exceptional circumstances that led to the triggering of Article 29 still persisted.

This Recommendation was addressed to the same five Schengen States (Austria, Germany, Denmark, Sweden and Norway), concerned the same internal border sections in these States and allowed for the maintenance of targeted and proportionate controls for a further period of three months, namely until 12 February 2017. The reintroduced border control was nevertheless submitted to stricter conditions than under the Recommendation of 12 May 2016 and a detailed monthly reporting obligation for the Schengen States concerned. Under Articles 25 and 29 of the Schengen Borders Code, this period can be again prolonged in accordance with the conditions and procedure set out in Article 29 if the exceptional circumstances persist.

This Recommendation is without prejudice to additional possibilities available to all Member States, including the five affected Member States, under the general rules for temporary reintroduction of internal border control in the event of another serious threat to public policy or internal security, not linked to the serious deficiencies in the management of the external border. For example during the period of application of the Recommendation of 12 May 2016, France, not concerned by this Recommendation, notified the reintroduction and subsequent maintenance of border controls at its internal borders based on grounds related to foreseeable events and terrorist threats.

In addition, as is recognised by Article 23 of the Schengen Borders Code, Member States can carry out police checks in border areas, as long as those do not have an effect equivalent to border checks. The available intelligence and increased level of threat can justify the intensification of such checks, including on key transport networks with cross-border police cooperation, which can be instrumental in responding both to uncontrolled secondary movements and terrorism. With a view to returning to a normal functioning of Schengen and gradually phasing out the current temporary internal border controls, the Commission encourages Member States to make use of this possibility.

It should also be highlighted that neither carrying out police checks in border areas nor reintroduced border controls can provide full security on their own, as demonstrated by the recent terrorist attack in Berlin. Therefore the increased and effective cooperation at all levels of relevant services among Member States fighting terrorism (exchange of intelligence, police cooperation and use of EU databases) remains fundamental in ensuring full security in the Schengen area.

In the meantime, a series of measures proposed by the Commission for better managing the external borders of the Union and protecting the Schengen area have been implemented or are being implemented. The border control-related measures include inter alia the operationalisation of the European Border and Coast Guard, the establishment of the hot-spots and the upcoming systematic checks against relevant databases for all people crossing the external border. The external borders of the EU are today better protected and equipped to react to a new crisis due to the newly established European Border and Coast Guard. The Commission will continue to closely cooperate with the European Border and Coast Guard Agency and ensure that all obligations foreseen by the European Border and Coast Guard Regulation are met. Those measures should lead to a much better protection of the EU external border, which is an indispensable prerequisite to the lifting of the temporarily reintroduced internal border controls and the restoration of a normally functioning Schengen area.

The Commission is fully aware that future migratory flows at any EU border section may pose a serious threat to public policy or internal security in one or several Member States. For this reason actions are taken at different border sections at sea and on land to take coordinated action, including through additional efforts on the Central Mediterranean route, through the Partnership Framework, and by taking additional action on the relevant sections of the external borders. The Commission also recognises that new security challenges have arisen in the past years, as demonstrated by the very recent terrorist attack in Berlin. In this respect, whilst the current legal framework has been sufficient to address challenges faced until now, the Commission is reflecting on whether it is sufficiently adapted to address evolving security challenges.