Regulation (EC) No 296/2008 of the European Parliament and of the Council of 11 March 2008 amending Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as regards the implementing powers conferred on the Commission
Date: 2008-03-11
Institutions: Council of the European Union, European Parliament
Subjects: Schengen Agreement, border control, external border of the EU, foreign national

L 97/60

EN

Official Journal of the European Union

9.4.2008

REGULATION (EC) No 296/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 2008

amending Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the
movement of persons across borders (Schengen Borders Code), as regards the implementing powers
conferred on the Commission

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(5)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 62(1) and (2)(a) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251
of the Treaty (1),

Whereas:

(1)

(2)

(3)

(4)

Regulation (EC) No 562/2006 of the European Parliament
and of the Council (2) provides that certain measures
should be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the proce-
dures for the exercise of implementing powers conferred
on the Commission (3).

Decision 1999/468/EC has been amended by Decision
2006/512/EC, which introduced the regulatory procedure
with scrutiny for the adoption of measures of general scope
and designed to amend non-essential elements of a basic
instrument adopted in accordance with the procedure
referred to in Article 251 of the Treaty, inter alia, by delet-
ing some of those elements or by supplementing the
instrument with new non-essential elements.

In accordance with the statement by the European Parlia-
ment, the Council and the Commission (4) concerning
Decision 2006/512/EC, for the regulatory procedure with
scrutiny to be applicable to instruments adopted in accor-
dance with the procedure referred to in Article 251 of the
Treaty which are already in force, those instruments must
be adjusted in accordance with the applicable procedures.

The Commission should be empowered to adopt certain
practical measures governing border surveillance and to
amend certain annexes. Since those measures are of gen-
eral scope and are designed to amend non-essential ele-
ments of Regulation (EC) No 562/2006,
inter alia, by
supplementing it with new non-essential elements, they
must be adopted in accordance with the regulatory proce-
dure with scrutiny provided for in Article 5a of Decision
1999/468/EC.

(1) Opinion of the European Parliament of 14 November 2007 (not yet
published in the Official Journal) and Council Decision of 3 March
2008.

(2) OJ L 105, 13.4.2006, p. 1.
(3) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(4) OJ C 255, 21.10.2006, p. 1.

Regulation (EC) No 562/2006 provides for a period of sus-
pension as regards the implementing powers conferred on
the Commission. In their statement concerning Decision
2006/512/EC, the European Parliament, the Council and
the Commission stated that Decision 2006/512/EC pro-
vides a horizontal and satisfactory solution to the Euro-
pean Parliament’s wish to scrutinise the implementation of
instruments adopted under the co-decision procedure and
that, accordingly, implementing powers should be con-
ferred on the Commission without time-limit. The Euro-
pean Parliament and the Council also declared that they
would make sure that the proposals aimed at repealing the
provisions in the instruments that provide for a time-limit
on the delegation of implementing powers to the Commis-
sion are adopted as rapidly as possible. Following the intro-
duction of the regulatory procedure with scrutiny, the
provision that provides for that period of suspension in
Regulation (EC) No 562/2006 should be deleted.

(6)

Regulation (EC) No 562/2006 should therefore be
amended accordingly.

(7)

(8)

In accordance with Articles 1 and 2 of the Protocol on the
position of Denmark annexed to the Treaty on European
Union and the Treaty establishing the European Commu-
nity, Denmark is not taking part in the adoption of this
Regulation and is not bound by it or subject to its appli-
cation. Given that this Regulation builds upon the Schen-
gen acquis under the provisions of Title IV of Part Three of
the Treaty establishing the European Community, Den-
mark should, in accordance with Article 5 of the said Pro-
tocol, decide within a period of six months after the date
of adoption of this Regulation whether it will implement
it in its national law.

As regards Iceland and Norway, this Regulation constitutes
a development of provisions of the Schengen acquis within
the meaning of the Agreement concluded by the Council
of the European Union and the Republic of Iceland and the
Kingdom of Norway concerning the latters’ association
with the implementation, application and development
of the Schengen acquis (5), which fall within the area
referred to in Article 1, point A of Council Decision
1999/437/EC (6) on certain arrangements for the applica-
tion of that Agreement.

(5) OJ L 176, 10.7.1999, p. 36.
(6) OJ L 176, 10.7.1999, p. 31.

9.4.2008

EN

Official Journal of the European Union

L 97/61

(9)

(10)

(11)

As regards Switzerland, this Regulation constitutes a devel-
opment of the provisions of the Schengen acquis within the
meaning of the Agreement signed by the European Union,
the European Community and the Swiss Confederation on
the association of the Swiss Confederation with the imple-
mentation, application and development of the Schengen
acquis which fall within the area referred to in Article 1,
point A, of Decision 1999/437/EC read in conjunction
with Article 4(1) of Council Decisions 2004/849/EC (1)
and 2004/860/EC (2).

take part,

This Regulation constitutes a development of provisions of
the Schengen acquis in which the United Kingdom does
not
in accordance with Council Decision
2000/365/EC of 29 May 2000 concerning the request of
the United Kingdom of Great Britain and Northern Ireland
to take part in some of the provisions of the Schengen
acquis (3). The United Kingdom is therefore not taking part
in its adoption and is not bound by it or subject to its
application.

This Regulation constitutes a development of provisions of
the Schengen acquis in which Ireland does not take part, in
accordance with Council Decision 2002/192/EC of 28 Feb-
ruary 2002 concerning Ireland’s request to take part in
some of the provisions of the Schengen acquis (4). Ireland
is therefore not taking part in its adoption and is not bound
by it or subject to its application,

Article 1

Amendments

Regulation (EC) No 562/2006 is hereby amended as follows:

(1) Article 12(5) shall be replaced by the following:

‘5.
Additional measures governing surveillance may be
adopted. Those measures, designed to amend non-essential
elements of this Regulation by supplementing it, shall be
adopted in accordance with the regulatory procedure with
scrutiny referred to in Article 33(2).’;

(2) Article 32 shall be replaced by the following:

‘Article 32

Amendments to the Annexes

Annexes III, IV and VIII shall be amended in accordance with
the regulatory procedure with scrutiny referred to in
Article 33(2).’;

(3) Article 33(2) shall be replaced by the following:

reference

to this paragraph,
‘2. Where
Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC
shall apply, having regard to the provisions of Article 8
thereof.’;

is made

(4) Article 33(4) shall be deleted.

Article 2

Entry into force

HAVE ADOPTED THIS REGULATION:

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

This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.

Done at Strasbourg, 11 March 2008.

For the European Parliament
The President
H.-G. PÖTTERING

For the Council
The President
J. LENARČIČ

(1) Council Decision 2004/849/EC of 25 October 2004 on the signing,
on behalf of the European Union, and on the provisional application
of certain provisions of the Agreement between the European Union,
the European Community and the Swiss Confederation concerning the
Swiss Confederation’s association with the implementation, applica-
tion and development of the Schengen acquis (OJ L 368, 15.12.2004,
p. 26).

(2) Council Decision 2004/860/EC of 25 October 2004 on the signing,
on behalf of the European Community, and on the provisional appli-
cation of certain provisions of the Agreement between the European
Union, the European Community and the Swiss Confederation con-
cerning the Swiss Confederation’s association with the implementa-
tion, application and development of the Schengen acquis (OJ L 370,
17.12.2004, p. 78).

(3) OJ L 131, 1.6.2000, p. 43.
(4) OJ L 64, 7.3.2002, p. 20.