Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement
Date: 2011-03-10
Institutions: European Commission
Subjects: Schengen Agreement, border control, customs document, customs formalities, external border of the EU, foreign national, internal border of the EU

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EUROPEAN COMMISSION 

Brussels, 10.3.2011 
COM(2011) 118 final 

2011/0051 (COD) 

Proposal for a  

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 562/2006 of the European Parliament and of the Council 
establishing a Community Code on the rules governing the movement of persons across 
borders (Schengen Borders Code) and the Convention implementing the Schengen 
Agreement 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  contains  a  number  of  amendments  to  Regulation  (EC)  No  562/2006  of  the 
European Parliament and of the Council of 15 March 2006 establishing a Community Code 
on  the  rules  governing  the  movement  of  persons  across  borders  (Schengen  Borders  Code). 
These  are  the  result  of  the  experience  gained  during  the  first  years  of  its  application.  The 
proposal also contains some closely related modifications to the Convention implementing the 
Schengen Agreement of 14 June 1985. 

General context 

On  13  October  2006,  Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the 
Council  of  15  March  2006  establishing  a  Community  Code  on  the  rules  governing  the 
movement of persons across borders (Schengen Borders Code) entered into force. 

After  four  years  of  practical  application,  the  need  for  a  number  of  limited  technical 
amendments has emerged. The main sources for these amendments are: 

–  practical experiences of the Member States and the Commission in the application of the 
Schengen Borders Code, including the results of Schengen evaluations and the reports and 
requests submitted by Member States; 

–  the Commission report of September 2009 on the operation of the provisions on stamping 
of the travel documents of third-country nationals in accordance with Articles 10 and 11 of 
the Schengen Borders Code (COM(2009) 489); 

–  the Commission report of 13 October 2010 on the application of Title III (Internal Borders) 

of the Schengen Borders Code (COM(2010) 554); 

–  consistency  considerations  linked  to  other  recently  adopted  legislation,  in  particular  the 
Visa  Code  (Regulation  (EC)  No  810/2009  of  13  July  2009)  and  the  Return  Directive 
(Directive 2008/115/EC of 16 December 2008). 

This proposal contains amendments that improve clarity and narrow the scope for divergent 
interpretations  of  the  existing  text  as  well  as  amendments  responding  to  practical  problems 
that have arisen during the first years of the Schengen Borders Code. Furthermore it provides 
for an explicit legal framework for bilateral agreements related to joint border checks on road 
traffic  

New policy initiatives, such as the creation of an EU Entry/Exit System and an EU Registered 
Traveller Programme, will be the subject of specific proposals to be discussed separately. 

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Existing provisions 

Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the  Council  of  15  March 
2006 establishing a Community Code on the rules governing the movement of persons across 
borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement 
of 14 June 1985. 

2. 

CONSULTATION OF INTERESTED PARTIES  

The proposed changes were the subject of an exchange of views with Member State experts at 
the meeting of the Immigration and Asylum Group on 16 March 2010.  

On 7 May 2010, a special expert meeting allowed for an in-depth exchange of views on the 
proposed  amendments.  The  Member  State  experts  broadly  supported  the  substance  of  the 
proposed  changes  as  well  as  the  approach  of  proposing  technical  amendments  to  make  a 
limited  number  of  practical  and  technical  improvements  to  the  Schengen  Borders  Code. 
Several experts emphasised the pressing practical need to address some of the issues raised in 
this  proposal  in  a  pragmatic  way  and  expressed  the  hope  that  the  amendments  could  be 
adopted rapidly.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary  

The main proposed amendments concern the following issues: 

–  Clear  definition  of  the  method  for  calculating ‘stays  not  exceeding  three  months  per  six-
month period’ (Article 5): following the judgment delivered by the ECJ on 3 October 2006 
in  Case  C-241/05,  Bot,  (ECR  2006  p.  I-09627)  and  the  adoption  of  a  related  parallel 
provision in Article 2(2)(a) of the Visa Code, clarified and authentic legislative guidance 
on this issue is needed for the Schengen Borders Code. 

–  Clarification  concerning  the  required  period  of  validity  of  travel  documents  of  non-visa 
holders (Article 5), in response to practical needs and in order to align the text with Article 
12 of the Visa Code. 

–  Possibility  to  create  separate  lanes  for  visa-free  travellers  (Article  9)  in  order  to  provide 

additional flexibility and speed up border control in accordance with practical needs. 

–  Improved training of border guards in order to detect situations of particular vulnerability 
involving  unaccompanied  minors  and  victims  of  trafficking  (Article  15);  the  need  to  pay 
specific  attention  to  training  for  detecting  such  situations  was  recently  confirmed  by  the 
Commission’s  Action  Plan  on  Unaccompanied  Minors  (2010  –  2014),  COM(2010)  213 
final of 6.5.2010. 

–  Possibility  to  provide  for  derogations  related  to  the  entry  and  exit  of  members  of  rescue 

services, police and fire brigades acting in emergency situations (Article 19). 

–  An  explicit  legal  framework  for  joint  border  crossings  (Annex  VI):  in  order  to  enable 
bilateral  agreements  to  be  concluded  between  Member  States  and  neighbouring  third 

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countries on cooperation in border control with joint border crossing points, Annex VI of 
the Schengen Borders Code needs to be amended to expressly permit bilateral agreements 
for  joint  border  checks  on  road  traffic  and  to  provide  a  legal  framework  on  certain  key 
issues, such as the situation of persons requesting international protection.  

Legal basis 

Article  77(1)  as  well  as  Article  77  (2)  of  the  Treaty  on  the  Functioning  of  the  European 
Union.  

This proposal amends Regulation (EC) No 562/2006 of the European Parliament and of the 
Council  of  15  March  2006  establishing  a  Community  Code  on  the  rules  governing  the 
movement  of  persons  across  borders  (Schengen  Borders  Code)  which  was  based  on  the 
equivalent provisions of the Treaty establishing the European Community, i.e. Articles 62(1) 
and (2)(a). It also amends Articles 21 and 22 of the Convention implementing the Schengen 
Agreement of 14 June 1985, which were determined by Decision 1999/436/EC to be based on 
Article  62(3)  EC,  as  well  as  Article  136  of  this  Convention,  which  was  determined  to  be 
based on Article 62(2) EC. 

Subsidiarity principle 

Article 77(1)(a) and (b) empowers the Union to develop a policy with a view to ‘ensuring the 
absence  of  any  controls  on  persons,  whatever  their  nationality,  when  crossing  internal 
borders’  and  ‘carrying  out  checks  on  persons  and  efficient  monitoring  of  the  crossing  of 
external borders’. 

The  current  proposal  is  within  the  limits  set  by  these  provisions.  The  objective  of  this 
proposal is to further develop and technically improve the measures of the Schengen Borders 
Code  concerning  the  checks  to  which  persons  crossing  external  borders  are  subject  and  the 
absence  of  controls  on  persons  when  crossing  internal  borders.  It  cannot  be  sufficiently 
achieved by the Member States acting alone, because an amendment to an existing Union Act 
(the Schengen Borders Code) can only be achieved by the Union. 

Proportionality principle 

Article 5 (4) of the Treaty on European Union states that the content and form of Union action 
must not exceed what is necessary to achieve the objectives of the Treaties. The form chosen 
for  this  action  must  enable  the  proposal  to  achieve  its  objective  and  be  implemented  as 
effectively as possible.  

The creation of the Schengen Borders Code in 2006 had to be in the form of a regulation, in 
order  to  ensure  that  it  is  applied  in  the  same  way  in  all  the  Member  States  that  apply  the 
Schengen  acquis.  The  proposed  initiative  —  amendment  of  the  Schengen  Borders  Code  — 
constitutes an amendment to an existing regulation and can only be achieved by means of a 
regulation.  As  to  the  content,  this  initiative  is  limited  to  improvements  of  the  existing 
regulation  and  based  on  the  policy  orientations  contained  therein.  The  proposal  therefore 
complies with the proportionality principle. 

Choice of instrument  

Proposed instrument: Regulation. 

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4. 

BUDGETARY IMPLICATIONS 

The proposed amendment has no implications for the EU budget. 

5. 

ADDITIONAL INFORMATION 

Consequences  of  the  various  protocols  annexed  to  the  Treaties  and  of  the  association 
agreements concluded with third countries  

The legal basis for this proposal is to be found in Title V of Part Three of the Treaty on the 
Functioning  of  the  European  Union,  with  the  result  that  the  system  of  ‘variable  geometry’, 
provided  for  in  the  protocols  on  the  position  of  the  United  Kingdom,  Ireland  and  Denmark 
and  the  Schengen  protocol  applies.  The  proposal  builds  on  the  Schengen  acquis.  The 
consequences  for  the  various  protocols  therefore  have  to  be  considered  with  regard  to 
Denmark,  Ireland  and  the  United  Kingdom;  Iceland  and  Norway;  and  Switzerland  and 
Liechtenstein. The detailed situation of each of these states is described in recitals 7-12 of this 
proposal. 

Succinct overview of the proposed amendments 

–  Article 1 - Amendments to the Schengen Borders Code:  

Horizontal changes 

–  Throughout the text, a certain number of changes resulting from the entry into force of the 
Lisbon Treaty are proposed (‘EU’ instead of ‘EC’; ‘European Union’ instead of ‘European 
Community’; updated references to Treaty provisions).  

Article 2, Definitions 

–  Point 1: Amendment resulting from the changes proposed in points 4 and 4a.  

–  Point  4:  Clarification,  highlighting  that  Article  2  point  4  relates  to  ferry  connections 

between Member States only. 

–  Point  4(a):  The  new  definition  will  allow  internal  cargo  operators  to  benefit  from  the 

absence of internal border controls in the same way as internal ferry operators. 

–  Point  15:  The  definition  of  residence  permit  is  reshaped.  In  order  to  avoid  any 
misunderstanding, it is made clear that visas (both long-stay and short-stay) can never be 
considered  as  ‘residence  permits’  within  the  meaning  of  point  15(b).  The  outdated 
reference to ‘re-entry’ is removed. It is also clarified that national permits must be notified 
and published under Article 34 to be regarded as such. 

Article 4, Crossing of external borders 

In  an  effort  to  improve  the  overall  structure  and  clarity  of  the  text,  the  existing  detailed 
derogations  in  points  (a)  and  (b)  are  removed.  To  retain  the  substance  of  the  deleted 
provisions, Articles 18 and 19 are amended to allow for derogations to Article 4 for various 
types  of  borders  and  categories  of  persons  in  general,  in  combination  with  the  existing 
wording  of  Annex  VI  3.2.5.–9.  (pleasure  boating  and  coastal  fishing)  and  Annex  VII  3.1 

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(seamen).  The  reference  to  ‘occasional  crossing’  in  paragraph  2  is  intended  to  clearly 
distinguish  the  exceptions  authorised  under  this  provision  from  local  border  traffic  regimes 
allowing for ‘regular crossing’ (governed by Article 35 and Regulation (EC) No 1931/2006). 
In  addition,  paragraph  2  expressly  authorises  bilateral  agreements  with  neighbouring  third 
countries in this field. 

Article 5, Entry conditions for third-country nationals 

–  Paragraph 1: Duration of stay: following the judgment delivered by the ECJ on 3 October 
2006  in  Case  C-241/05,  Bot,  and  the  adoption  of  a  related  parallel  provision  in  Article 
2(2)(a)  of  the  Visa  Code,  clear  legislative  guidance  for  calculating  the  ‘three  months  per 
six-month  period’  for  the  Schengen  Borders  Code  is  given  by  aligning  the  wording  with 
the Visa Code. Valid travel documents: in response to practical needs, the text is aligned 
with  Article  12  of  the  Visa  Code,  including  the  possibility  for  border  guards  to  allow 
exceptions in justified cases of emergency.  

–  Paragraph 4: Removal of the outdated and misleading term ‘re-entry visa’. Replacement of 
the reference to Regulation (EC) No 415/2003 in Article 5(4)(b) by a reference to the new 
Visa Code. Given that Article 46 and Annex XII of the Visa Code require statistics to be 
compiled  on  visas  for  each  location  where  Member  States  issue  visas  (this  definition 
includes  border  crossing  points  where  visas  are  issued),  the  second  paragraph  of  Article 
5(4)(b)  has  become  redundant  and  should  be  replaced  with  a  reference  to  the  relevant 
provisions of the Visa Code.  

Article 7, Border checks on persons 

–  Paragraph 5: Clarification of the existing obligation to provide information in written form. 

–  New paragraph 8: Since the exceptional circumstances listed in Article 4(2) (requirements 
of  a  special  nature  and  emergency  situations)  may  also  make  it  necessary  in  practice  to 
provide for certain derogations to Article 7, this is explicitly allowed. 

Article 9, Separate lanes and information on signs 

–  Paragraph 2: The possibility of creating separate lanes for visa-free travellers is intended to 
provide  additional  flexibility  and  speed  up  border  control  in  accordance  with  practical 
needs. 

Article 10, Stamping of the travel documents of third-country nationals 

–  Paragraph 2: Correction of a linguistic mistake in the EN version of the text. 

–  Paragraph  3:  The  situation  of  train  crews  on  international  connections  is  comparable  to 
pilots  or  seamen  as  these  trains  follow  a  fixed  schedule.  In  its  ‘stamping  report’ 
(COM(2009)  489  final)  of  September  2009,  the  Commission  already  announced  that  it 
would introduce an exemption from stamping for this category of persons. 

Article 11, Presumption as regards fulfilment of conditions for duration of stay 

–  Paragraph 3: Technical adaptation resulting from the adoption of new legislation (Return 

Directive 2008/115/EC). 

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–  New paragraph 4: Technical adaptation to fill a gap in the current text (proof of exit in the 

absence of an exit stamp).  

Article 12, Border surveillance 

–  Modification related to the power of the Commission to adopt delegated acts in accordance 

with Article 290 of the Treaty on the Functioning of the European Union.  

Article 13, Refusal of entry 

–  Paragraph  5:  Technical  adaptation  resulting  from  the  adoption  of  new  legislation 

(Migration Statistics Regulation 862/2007). 

Article 15, Implementation of controls 

–  Paragraph  1:  Express  mention  is  made  of  common  core  curricula  for  border  guards 
developed  by  FRONTEX.  The  need  to  pay  specific  attention  to  training  for  detecting 
situations of particular vulnerability was recently highlighted by the Commission’s Action 
Plan on Unaccompanied Minors (COM(2010) 213 final of 6.5.2010). 

Article 18, Specific rules for the various types of borders and the various means of transport 
used for crossing external borders  

–  Last sentence: To complement the amendments to Article 4(2), a systematically coherent 
basis  is  provided  for  derogations  to  Article  4  for  all  types  of  borders  and  all  means  of 
transport in Annex VI. 

Article 19, Specific rules for checks on certain categories of persons  

–  New  paragraph  1(g):  In  order  to  allow  for  derogations  related  to  the  entry  and  exit  of 
members  of  rescue  services,  police  and  fire  brigades  acting  in  emergency  situations  an 
express  legal  framework  is  required  (addition  of  a  new  category  in  Article  19, 
accompanied  by  related  provisions  in  Annex  VII)  including  the  possibility  to  conclude 
bilateral agreements on this issue. 

–  New paragraph 1(h): A special exemption is made for offshore workers (such as workers 
on  oil-platforms  or  on  maritime  windparks)  in  Annex  VII,  point  8,  providing  for  rules 
comparable to coastal fishing (Annex VI, points 3.2.8 and 9). 

–  Paragraph  1,  second  sentence:  To  complement  the  amendments  to  Article  4(2),  a 
systematically coherent basis is provided for derogations to Article 4 for all categories of 
persons mentioned in Annex VII. 

Article 21, Checks within the territory  

–  Point d: Many Member States do not implement Article 22 of the Schengen implementing 
Convention (reporting obligation for legally staying third-country nationals entering other 
Member  States).  Practical  difficulties  in  verifying  compliance  with  this  general  reporting 
obligation  are  broadly  acknowledged  and  no  convincing  cost/benefit  argument  could  be 
made  to  show  that  this  rule  has  a  significant  impact  on  identifying  illegally  staying 
immigrants. The recent Commission report on the application of Title III (Internal Borders) 

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of the Schengen Borders Code (COM(2010) 554) therefore proposed repealing Article 22 
Schengen implementing Convention as well as the corresponding reference to it in Article 
21(d)  Schengen  Borders  Code.  The  proposed  amendment  does  not  affect  the  right  of 
Member States to provide for targeted checks to fight illegal immigration in their territory 
within the limits set out in Article 21, points a to c. 

Article 32, Amendments to the Annexes 

–  Modification related to the power of the Commission to adopt delegated acts in accordance 

with Article 290 of the Treaty on the Functioning of the European Union.  

Article 33, Exercise of the delegation 

–  The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of 
the  European  Union  has  to  be  expressly  delegated  to  the  Commission.  The  proposal 
follows standard wording suggested in the draft Common Understanding of the European 
Parliament, of the Council and of the European Commission setting out a working method 
among  the  institutions  on  the  implementation  of  Article  290.  The  wording  may  require 
further  modification  in  order  to  take  into  account  the  results  of  the  ongoing  inter-
institutional negotiations. 

Article 34, Notification  

–  Paragraph  1:  Clarification  related  to  the  amendments  to  Article  2(15).  Given  the  legal 
effects  which  the  Schengen  Borders  Code  attaches  to  residence  cards  issued  under 
Directive 2004/38/EC, this type of permits will have to be specifically highlighted as such. 

Article 37, Notification of information by the Member States  

–  Alignment  of  reporting  obligations,  expressly  obliging  Member  States  to  inform  the 

Commission of all bilateral agreements authorised by the Schengen Borders Code. 

Annex III 

–  Adaptation  resulting  from  the  amendment  of  Article  9(2)  to  allow  for  separate  lanes  for 

visa-free travellers. 

Annex IV 

–  Paragraph 3: Technical adaptation. Given the standard size of the travel document (126 x 
88  mm),  visa  sticker  (105  x  74  mm)  and  entry/exit  stamp  (43  x  30  mm)  it  has  become 
technically impossible to observe the rule that stamps should be affixed on the same page 
as the visa sticker without potentially affecting the legibility of the indications on the visa.  

Annex VI 

–  New point 1.1.4.: To allow the conclusion of bilateral agreements between Member States 
and  neighbouring  third  countries  on  cooperation  in  border  control  with  joint  border 
crossing  points,  an  explicit  legal  framework  is  needed,  also  covering  certain  key  issues 
such  as  the  situation  of  persons  requesting  international  protection.  The  proposed 
amendment  allows  Member  States  to  conclude  bilateral  agreements  (authorisation  within 
the meaning of Article 2(1) TFEU), but does not oblige them to do so. 

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–  Points 1.2.1. and 1.2.2.: For reasons of consistency, the rules for the conclusion of bilateral 
agreements on border checks in rail traffic are aligned with the legal framework proposed 
in  point  1.1.4.  for  road  traffic.  Following  the  proposed  change  to  Article  37,  the  last 
sentence  of  point  1.2.1.  becomes  redundant  and  should  be  deleted.  Further  flexibility  on 
the place where checks may be carried out is provided for in line with practical needs.  

–  Point 3.1.1-3.1.5: Technical adaptations aligning the wording with terminology used in the 
FAL  Convention  (International  Maritime  Organisation's  Convention  on  Facilitation  of 
International  Maritime  Traffic)  and  Directive  2010/65/EU  on  reporting  formalities  for 
ships arriving in and/or departing from ports of the Member States1, including introduction 
of  the  possibility  to  submit  crew  and  passenger  lists  electronically;  the  introduction  of  a 
reference  to  information  required  by  FAL  Convention  lists  as  endorsed  by  Directive 
2002/6/EC; the possibility to submit lists via port authorities to border posts; deadlines for 
the  transmission  of  lists;  more  specific  guidance  on  administrative  checking  of  the  lists; 
and clarification on the need to check persons staying on board without disembarkation.  

–  Point 3.2.1: Adaptations resulting from modifications to point 3.1. 

–  Point 3.2.2.: Adaptation, in line with the changes proposed in point 3.1.4. 

–  Point 3.2.4.: In order to avoid overlap with point 3.1.2. as amended, point 3.2.4. should be 

deleted. 

–  Point  3.2.9.:  The  obligation  to  notify  changes  is  already  provided  for  in  point  3.1.2.  and 

does not need to be repeated in point 3.2.9. 

–  New  point  3.2.10.(i):  Clarification  on  the  need  to  submit  crew  and  passenger  lists  in  the 
case  of  ferry  connections,  aligned  with  the  provisions  of  the  Maritime  Safety  Directive 
98/41/EC.  

–  New point 3.2.11.: Clarification with regard to the regime applicable to ferries from a third 
country with more than one stop within the territory of the Member States, following the 
logic and wording of an existing parallel provision for air borders (point 2.1.2.(b) (iii)). 

Annex VII 

–  Point  3.1.:  Correction  of  an  editorial  mistake:  most  Member  States  have  ratified  the 
Seafarers Identity Documents Convention No C 108, while only three Member States have 
ratified  the  Seafarers  Identity  Documents  Convention  No  C  185  (LT,  HU,  FR).  Both 
Conventions  should  therefore  be  mentioned.  Editorial  improvement:  ‘going  ashore’  at  a 
port implies not only entry but also the possibility to return to the ship (exit) once the stay 
ashore is finished.  

–  Deletion  of  the  last  sentence  of  points  3.1  and  3.2.:  Point  3  deals  with  derogations  to 
Article  4  and  7  only,  not  with  derogations  to  Article  5.  This  text  is  thus  misleading  and 
should be deleted.  

1 

Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting 
formalities  for  ships  arriving  in  and/or  departing  from  ports  of  the  Member  States  and  repealing 
Directive 2002/6/EC; OJ L 283, 29.10.2010, p.1 

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–  Points 6.4. and 6.5.: A list of national contact points for consultation purposes on minors 
(currently established on a voluntary basis under section 3.7 and Annex 37 of the Schengen 
Handbook) now must be established and its use made obligatory. 

–  New point 7: See comment on Article 19(1)(g) above. 

–  New point 8: See comment on Article 19(1)(h) above. 

Annex VIII 

–  Adaptation resulting from modification of Article 11. 

Article 2 - Amendments to the Convention implementing the Schengen Agreement:  

–  Repeal Article 21(3): Given the notification obligations under Article 34 Schengen Borders 

Code, this provision has become redundant and needs to be repealed. 

–  Repeal Article 22: See comments on Article 21 (d) SBC above. 

–  Repeal  of  Article  136:  The  rules  relating  to  border  checks  have  been  harmonised  by  EU 
law.  This  affects  the  power  of  Member  States  to  conclude  treaties  in  this  field.  The 
conclusion of bilateral agreements between a Member State and a third country on border 
checks  without  specific  permission  to  do  so  in  the  Schengen  Borders  Code  would  affect 
EU law within the meaning of Article 3(2) TFEU and Article 2(1) TFEU. Article 136 of 
the Convention implementing the Schengen Agreement is incompatible with this principle. 
It should therefore be repealed. 

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2011/0051 (COD) 

Proposal for a  

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 562/2006 of the European Parliament and of the Council 
establishing a Community Code on the rules governing the movement of persons across 
borders (Schengen Borders Code) and the Convention implementing the Schengen 
Agreement 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 77(1) and (2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

Union policy in the field of external borders aims for integrated management to ensure 
a uniform and high level of control and surveillance, which is a necessary corollary to 
the  free  movement  of  persons  within  the  European  Union  and  a  fundamental 
component of an area of freedom, security and justice. To this end, common rules on 
standards and procedures for the control of external borders are to be established. 

On 13 October 2006, Regulation (EC) No 562/2006 of the European Parliament and of 
the Council of 15 March 2006, establishing a Community Code on the rules governing 
the movement of persons across borders (Schengen Borders Code)2 entered into force. 

After  four  years  of  practical  application,  the  need  for  a  number  of  amendments  has 
emerged,  based  on  the  practical  experiences  of  the  Member  States  and  the 
Commission in applying the Schengen Borders Code, including results from Schengen 
evaluations as well as reports and requests submitted by Member States. 

The  Commission  report  of  September  2009  on  the  operation  of  the  provisions  on 
stamping  of  the  travel  documents  of  third-country  nationals  in  accordance  with 
Articles  10  and  11  of  the  Schengen  Borders  Code  (COM(2009)  489)  as  well  as  the 
Commission  report  of  13  October  2010  on  the  application  of  Title  III  (Internal 
Borders)  of  the  Schengen  Borders  Code  (COM(2010)  554)  contain  concrete 
suggestions for technical amendments to the Schengen Borders Code. 

2 

OJ L 105, 13.4.2006, p. 1. 

EN 

11 

   EN 

                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

Recently  adopted  legislation,  in  particular  Regulation  (EC)  No  810/2009  of  the 
European  Parliament  and  of  the  Council  of  13  July  2009  establishing  a  Community 
Code on Visas (Visa Code)3 and Directive 2008/115/EC of  the  European  Parliament 
and  of  the  Council  of  16  December  2008  on  common  standards  and  procedures  in 
Member  States  for  returning  illegally  staying  third-country  nationals4  require  certain 
amendments to the Schengen Borders Code. 

In  order  to  align  the  provisions  of  the  Schengen  Borders  with  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU),  the  power  to  adopt  acts  in  accordance 
with  Article  290  of  the  Treaty  on  the  Functioning  of  the  European  Union  should  be 
delegated  to  the  Commission  in  respect  of  the  adoption  of  additional  measures 
governing surveillance in accordance with Article 12(5) as well as amendments to the 
annexes  in  accordance  with  Article  32.  It  is  of  particular  importance  that  the 
Commission carry out appropriate consultations during its preparatory work, including 
at  expert  level.  The  Commission,  when  preparing  and  drawing-up  delegated  acts, 
should  ensure  a  simultaneous,  timely  and  appropriate  transmission  of  relevant 
documents to the European Parliament and Council. 

Since the objective of this Regulation, namely to provide for technical amendments to 
the existing rules of the Schengen Borders Code, can only be achieved at Union level, 
the  European  Union  may  adopt  measures  in  accordance  with  the  principle  of 
subsidiarity  as  set  out  in  Article 5  of  the  Treaty  on  European  Union.  In  accordance 
with  the  principle  of  proportionality,  as  also  set  out  in  that  Article,  this  Regulation 
does not go beyond what is necessary in order to achieve this objective. 

As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of  the 
Schengen  acquis  within  the  meaning  of  the  Agreement  concluded  by  the  Council  of 
the  European  Union  and  by  the  Republic  of  Iceland  and  the  Kingdom  of  Norway 
concerning 
implementation,  application  and 
development of the Schengen acquis5, which fall within the area referred to in Article 
1,  point  A,  of  Council  Decision  1999/437/EC  on  certain  arrangements  for  the 
application of that Agreement6. 

latters’  association  with 

the 

the 

As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation's association with the implementation, application and development of 
the  Schengen  acquis,  which  fall  within  the  area  referred  to  in  Article  1,  point  A,  of 
Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC  on  the  conclusion,  on  behalf  of  the  European  Community,  of  the 
Agreement7. 

(10)  As regards Liechtenstein, this Regulation constitutes a development of the Schengen 
acquis within the meaning of the Protocol between the European Union, the European 
Community,  the  Swiss  Confederation  and  the  Principality  of  Liechtenstein  on  the 

3 
4 
5 
6 
7 

OJ L 243, 15.9.2009, p. 1. 
OJ L 348, 24.12.2008, p. 98. 
OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 1. 

EN 

12 

   EN 

                                                 
accession of the Principality of Liechtenstein to the Agreement between the European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s association with the implementation, application and development of 
the  Schengen  acquis  which  fall  within  the  area  referred  to  in  Article  1,  point  A,  of 
Council Decision 1999/437/EC of 17 May 1999, read in conjunction with Article 3 of 
Council Decision 2008/261/EC8. 

(11) 

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

(12)  This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in 
which  the  United  Kingdom  does  not  take  part,  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 
acquis9.  The  United Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

(13)  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 February 2002 concerning Ireland's request to take part in some of the provisions of 
the  Schengen  acquis10.  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Amendment of the Schengen Borders Code 

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

(1) 

Article 2 is amended as follows: 

(a) 

 In point 1, point (c) is replaced by the following: 

"(c)  sea,  river and lake ports  of the Member States for regular internal ferry 

connections and internal cargo connections;";  

(b) 

 in  point  4  the  words  "regular  ferry  connection"  is  replaced  by  the  words 
"regular internal ferry connection";  

(c) 

 the following point 4a is inserted: 

8 
9 
10 

OJ L 83, 26.3.2008, p. 5. 
OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 

EN 

13 

   EN 

                                                 
(d) 

(e) 

(f) 

(g) 

(h) 

"4a 

'internal cargo connection' means any cargo connection between the same 
two  or  more  ports  situated  in  the  territory  of  the  Member  States,  not 
calling at any ports outside the territory of the Member States;"; 

 in  point  5  the  phrase  "persons  enjoying  the  Community  right  of  free 
movement"  is  replaced  by  the  following  "persons  enjoying  the  right  of  free 
movement under Union law"; 

 in  point  5(a)  the  phrase  "Article  17(1)"  is  replaced  by  the  phrase  "Article 
20(1)";  

 in point 5(b) the word "Community" is replaced by the word "Union"; 

 in point 6 the phrase "Article 17(1)" is replaced by the phrase "Article 20(1)"; 

 Point 15 is replaced by the following: 

“‘residence permit’ means: 

(a) 

(b) 

all  residence  permits  issued  by  the  Member  States  according  to  the 
uniform format laid down by Council Regulation (EC) No 1030/2002 of 
13  June  2002  laying  down  a  uniform  format  for  residence  permits  for 
third-country  nationals  and  residence  cards  issued  in  accordance  with 
Directive 2004/38/EC; 

all other documents issued by a Member State to third-country nationals 
authorising  a  stay  in  its  territory,  that  have  been  the  subject  of  a 
notification  and  subsequent  publication  in  accordance  with  Article  34, 
with the exception of:  

(i) 

temporary permits issued pending examination of a first application 
for  a  residence  permit  as  referred  to  in  point  (a)  or  an  application 
for asylum and 

(ii)  visas issued by the Member States in the uniform format laid down 

by Council Regulation (EC) No 1683/95* 

____________________ 

OJ L 105, 13.4.2006, p. 1–”; 

(2) 

In Article 3 point (a) is replaced by the following: 

“(a) 

the rights of persons enjoying the right of free movement under Union law;” 

(3) 

In Article 4, paragraph 2 is replaced by the following: 

"2.  By way of derogation from paragraph 1, exceptions to the obligation to cross 
external borders only at border crossing points and during fixed opening hours may 
be allowed: 

(a) 

for individuals or groups of persons, where there is a requirement of a special 
nature  for  the  occasional  crossing  of  external  borders  outside  border  crossing 

EN 

14 

   EN 

points or outside fixed opening hours, provided that they are in possession of 
the  permits  required  by  national  law  and  that  there  is  no  conflict  with  the 
interests  of  public  policy  and  the  internal  security  of  the  Member  States. 
Member States may make specific arrangements in bilateral agreements; 

(b) 

for individuals or groups of persons in the event of an unforeseen emergency 
situation." 

(4) 

Article 5 is amended as follows: 

(a) 

 in  paragraph  1,  the  introductory  wording  and  point  (a)  are  replaced  by  the 
following: 

"For  intended  stays  in  the  territory  of  the  Member  States  of  a  duration  of  no 
more than three months in any six-month period from the date of first entry in 
the  territory  of  the  Member  States,  the  entry  conditions  for  third-country 
nationals shall be the following: 

(a) 

they  are  in  possession  of  a  valid  travel  document  or  a  document 
authorising them to cross the border satisfying the following criteria:  

(i) 

its validity shall extend at least three months after the intended date 
of departure from the territory of the Member States. In a justified 
case of emergency, this obligation may be waived.  

(ii) 

it shall have been issued within the previous 10 years". 

(b) 

 paragraph 4 is amended as follows: 

(i) 

point (a) is replaced by the following:  

"(a) 

third-country nationals who do not fulfil all the conditions laid down in 
paragraph 1 but who hold a residence permit or a long-stay visa shall be 
authorised  to  enter  the  territories  of  the  other  Member  States  for  transit 
purposes so that they may reach the territory of the Member State which 
issued  the  residence  permit  or  long-stay  visa,  unless  their  names  are  on 
the  national  list  of  alerts  of  the  Member  State  whose  external  borders 
they are seeking to cross and the alert is accompanied by instructions to 
refuse entry or transit;" 

(ii) 

in  point  (b),  the  first  and  second  paragraphs  are  replaced  by  the 
following: 

"third-country nationals who fulfil the conditions laid down in paragraph 
1, except for that laid down in point (b), and who present themselves at 
the  border  may  be  authorised  to  enter  the  territories  of  the  Member 
States, if a visa is issued at the border in accordance with Articles 35 and 
36  of  Regulation  (EC)  No 810/2009  of  the  European  Parliament  and  of 
the Council*. 

EN 

15 

   EN 

 
 
Member  States  shall  compile  statistics  on  visas  issued  at  the  border  in 
accordance  with  Article  46  and  Annex  XII  of  Regulation  (EC)  No 
810/2009.  

____________________ 

OJ L243, 15.9.2009, p.1 " 

(5) 

Article 7 is amended as follows: 

(a) 

(b) 

(c) 

In  the  second  subparagraph  of  paragraph  2  the  phrase  "persons  enjoying  the 
Community right of free movement" is replaced by "persons enjoying the right 
of free movement under Union law".  

In  the  third  subparagraph  of  paragraph  2  the  phrase  "persons  enjoying  the 
Community right of free movement" is replaced by "persons enjoying the right 
of free movement under Union law".  

In  the  fourth  subparagraph  of  paragraph  2  the  phrase  "persons  enjoying  the 
Community right of free movement" is replaced by "persons enjoying the right 
of free movement under Union law".  

(d) 

the first subparagraph of paragraph 5 is replaced by the following: 

“Third-country  nationals  subject  to  a  thorough  second  line  check  shall  be  given 
written information on the purpose of, and procedure for, such a check.” 

(e) 

 in paragraph 6, the word ‘Community’ is deleted and the phrase ‘under Union 
law’ is inserted after the word ‘movement’; 

(f) 

the following paragraph 8 is added: 

"8.  Where points (a) or (b) of Article 4(2) apply, Member States may also provide 

derogations from the rules set out in this Article." 

(6) 

In Article 9, paragraph 2 is replaced by the following: 

"2. (a)  Persons enjoying the right of free movement under Union law are entitled to use the 
lanes indicated by the sign in part A ("EU, EEA, CH") of Annex III. They may also 
use the lanes indicated by the sign in part B1 ("visa free") and B2 ("all passports") of 
Annex III. 

Third-country  nationals  who  are  not  obliged  to  possess  a  visa  when  crossing  the 
external  borders  of  the  Member  States  in  accordance  with  Regulation  (EC)  No 
539/2001 and third-country nationals who hold a valid residence permit or long-stay 
visa may use the lanes indicated by the sign in part B1 ("visa free") of Annex III to 
this  Regulation.  They  may  also  use  the  lanes  indicated  by  the  sign  in  B2  ("all 
passports") of Annex III to this Regulation. 

(b) 

All other persons shall use the lanes indicated by the sign in part B2 of Annex III.  

EN 

16 

   EN 

 
 
The indications on the signs referred to in points (a) and (b) of the first subparagraph 
may  be  displayed  in  such  language  or  languages  as  each  Member  State  considers 
appropriate. 

The  provision  of  separate  lanes  indicated  by  the  sign  in  part  B1  ("visa  free")  of 
Annex  III  is  an  option  and  not  an  obligation  for  Member  States.  They  shall  decide 
whether  to  do  so  and  at  which  border  crossing  points  in  accordance  with  practical 
needs." 

(7) 

Article 10 is amended as follows: 

(a) 

Paragraph 2 is replaced by the following: 

“2.  The  travel  documents  of  nationals  of  third  countries  who  are  members  of  the 
family  of  a  Union  citizen  to  whom  Directive  2004/38/EC  applies,  but  who  do  not 
present the residence card provided for in that Directive, shall be stamped on entry 
and exit.  

The travel documents of nationals of third countries who are members of the family 
of nationals of third countries enjoying the right of free movement under Union law, 
but  who  do  not  present  the  residence  card  provided  for  in  Directive  2004/38/EC, 
shall be stamped on entry and exit. " 

(b) 

In paragraph 3 the following points (f) and (g) are added: 

"(f) 

to  the  travel  documents  of  crews  of  passengers  and  goods  trains  on 
international connections; 

(g) 

to the travel documents of nationals of third countries who present a residence 
card provided for in Directive 2004/38/EC."  

(8) 

Article 11 is amended as follows: 

Paragraph 3 is replaced by the following: 

"Should the presumption referred to in paragraph 1 not be rebutted, the third-country 
national may be returned in accordance with Directive 2008/115/EC of the European 
Parliament and of the Council*. 

A new paragraph 4 is added: 

"The  relevant  provisions  of  paragraph  1  and  2  shall  apply  mutatis  mutandis  in  the 
absence of an exit stamp".  

____________________ 

* OJ L 348, 24.12.2008, p. 98." 

(9) 

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

"5. The Commission shall be empowered to adopt delegated acts in accordance with 
Article 33 concerning additional measures governing surveillance."; 

EN 

17 

   EN 

 
(10) 

In Article 13, paragraph 5 is replaced by the following: 

"5.  Member States shall collect statistics on the number of persons refused entry, 
the grounds for refusal, the nationality of the persons refused and the type of border 
(land,  air  or  sea)  at  which  they  were  refused  entry  and  submit  them  in  accordance 
with  Regulation  (EC)  No  862/2007  of  the  European  Parliament  and  of  the  Council 
∗." 

____________________ 

∗ OJ L 199, 31.7.2007, p. 23. 

(11) 

In Article 15(1), the third subparagraph is replaced by the following: 

"Member  States  shall  ensure  that  the  border  guards  are  specialised  and  properly 
trained  professionals,  taking  into  account  common  core  curricula  for  border  guards 
established  and  developed  by  the  European  Agency  for  the  Management  of 
Operational Cooperation at the External Borders of the Member States established by 
Council Regulation (EC) No 2007/2004. Training curricula shall include specialised 
training for detecting situations of particular vulnerability involving unaccompanied 
minors  and  victims  of  trafficking.  Member  States  shall  encourage  border  guards  to 
learn languages, in particular those necessary for the carrying-out of their tasks."  

(12) 

In Article 18, second paragraph, the reference "4," is added after the word "Articles". 

(13) 

In Article 19, paragraph 1 is amended as follows: 

(a) 

in the first subparagraph, the following points (g) and (h) are added: 

"(g) rescue services, police and fire brigades; 

(h) offshore workers." 

in  the  second  subparagraph  the  reference  "4,"  is  added  after  the  word 

(b) 
"Articles". 

(14) 

In Article 21, point (d) is deleted. 

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

"Article 32 

Amendments to the Annexes 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 33 concerning amendments to annexes III, IV and VIII."; 

(16)  Article 33 shall be replaced by the following: 

"Article 33 

Exercise of the delegation 

EN 

18 

   EN 

 
 
1. The power to adopt delegated acts is conferred on the Commission subject to the 
conditions laid down in this Article.  

2. The delegation of power referred to in Articles 12(5) and 32 shall be conferred for 
an  indeterminate  period  of  time  from  X.X.2011.  (Date  of  entry  into  force  of  this 
Regulation) 

3. The delegation of powers referred to in Articles 12(5) and 32 may be revoked at 
any  time  by  the  European  Parliament  or  by  the  Council.  A  decision  of  revocation 
shall put an end to the delegation of the power specified in that decision. It shall take 
effect the day following the publication of the decision in the Official Journal of the 
European Union or at a later date specified therein. It shall not affect the validity of 
any delegated acts already in force.  

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously 
to the European Parliament and to the Council.  

5.  A  delegated  act  adopted  pursuant  to  Articles  12(5)  and  32  shall  enter  into  force 
only  if  no  objection  has  been  expressed  either  by  the  European  Parliament  or  the 
Council  within  a  period  of  2  months  of  notification  of  that  act  to  the  European 
Parliament  and  the  Council  or  if,  before  the  expiry  of  that  period,  the  European 
Parliament  and  the  Council  have  both  informed  the  Commission  that  they  will  not 
object.  That  period  shall  be  extended  by  2  months at the initiative of the European 
Parliament or the Council." 

(17) 

In Article 34(1), point (a) is replaced by the following:  

the list of residence permits, distinguishing between those covered by point (a) 
"(a) 
of  Article  2  point  15  and  those  covered  by  point  (b)  of  Article  2  point  15  and 
accompanied by a specimen for permits covered by Article 2 point 15 (b). Residence 
cards  issued  in  accordance  with  Directive  2004/38/EC  shall  be  specifically 
highlighted as such."  

(18) 

In Article 37, the first sentence is replaced by the following: 

"The  Member  States  shall  notify  the  Commission  of  national  provisions  relating  to 
Article 21(c), the penalties as referred to in Article 4(3) and the bilateral agreements 
authorised by this Regulation." 

(19) 

Annexes III, IV, VI, VII and VIII are amended in accordance with the Annex to this 
Regulation.  

Article 2 

Amendment of the Convention implementing the Schengen Agreement 

The  Convention  implementing  the  Schengen  Agreement  of  14  June  1985  is  amended  as 
follows: 

(1) 

Article 21 paragraph 3 is deleted; 

(2) 

Article 22 is deleted; 

EN 

19 

   EN 

(3) 

Article 136 is deleted. 

Article 3 

Entry into force 

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 Treaties.  

Done at […],  

For the European Parliament 
The President 

For the Council 
The President 

EN 

20 

   EN 

ANNEX 

Annexes III, IV, VI, VII and VIII are amended as follows: 

(1) 

Annex III is amended as follows: 

(a)  Part B is replaced by the following: 

"PART B1: 'visa free'; 

VISA 
FREE  

PART B2: 'all passports'." 

EN 

21 

   EN 

 
 
 
 
 
 
ALL 
PASSPORTS 

" 

(b) 

In Part C, the following signs are inserted between the signs "EU, EEA, CH" 

and the signs "ALL PASSPORTS". 

EN 

22 

   EN 

 
 
 
 
 
(2) 

In Annex IV point 3 the first paragraph is replaced by the following: 

"On  the  entry  and  exit  of  third-country  nationals  subject  to  the  visa  obligation,  the 
stamp shall be done on the page facing the one on which the visa is affixed." 

(3) 

In Annex VI, point 1 is amended as follows: 

(a) 

the following point 1.1.4. is inserted: 

"1.1.4. Joint border crossing points 

1.1.4.1.  Member  States  may  conclude  bilateral  agreements  with  neighbouring  third 
countries  concerning  the  establishment  of  joint  border  crossing  points  at  which 
border guards of one party carry out entry and/or exit checks in accordance with their 
legislation  on  the  territory  of  the  other  party.  Joint  border  crossing  points  may  be 
located either on Member State territory or on third-country territory. 

1.1.4.2.  Joint  border  crossing  points  located  on  Member  State  territory:  Bilateral 
agreements  establishing  joint  border  crossing  points  located  on  Member  State 
territory  shall  contain  an  authorisation  for  third-country  border  guards  to  exercise 
their tasks in the Member State, respecting the following principles:  

(a) 

 International  protection:  A  third-country  national  asking  for  international 
protection on Member State territory shall be given access to relevant Member 
State  procedures  even  if  the  third-country  national  has  not  yet  passed  exit 
control  by  third-country  border  guards  present  at  the  joint  border  crossing 
point. 

(b) 

 Arrest  of  a  person  or  seizure  of  property:  If  third-country  border  guards 
become  aware  of  facts  justifying  the  arrest  or  placing  under  protection  of  a 
person or seizure of property, they shall  

- 

- 

either inform Member State authorities of these facts and Member State 
authorities  shall  assure  an  appropriate  follow-up  in  accordance  with 
national,  EU  and  international  law,  independently  of  the  nationality  of 
the concerned person, 

or act in accordance with their national legislation. In this case the person 
concerned must, however, be offered access to Member States courts and 
dispose  of  remedies  sufficient  to  ensure  legal  protection  in  the  fields 

EN 

23 

   EN 

 
 
covered  by  Union  law  in  order  to  provide  the  legal  protection  which 
individuals  derive  from  the  rules  of  Union  law  and  to  ensure  that  those 
rules are fully effective. 

(c) 

 Persons  enjoying  the  right  of  free  movement  under  Union  law  entering  EU 
territory:  Third-country  border  guards  shall  not  prevent  persons  enjoying  the 
right  of  free  movement  under  Union  law  from  entering  EU  territory.  If  there 
are  reasons  justifying  refusal  of  exit  from  the  third  country  concerned,  third-
country border guards shall inform Member State authorities of these reasons 
and  Member  State  authorities  shall  assure  an  appropriate  follow-up  in 
accordance with national, EU and international law. 

1.1.4.3.  Joint  border  crossing  points  located  on  third-country  territory:  Bilateral 
agreements establishing joint border crossing points located on third-country territory 
shall contain an authorisation for Member State border guards to exercise their tasks 
in  the  third  country  in  accordance  with  the  Schengen  Borders  Code  and  respecting 
the following principles:  

(a) 

(b) 

(c) 

 International protection: A third-country national who has passed exit control 
by  third-country  border  guards  and  subsequently  asks  Member  State  border 
guards present in the third country for international protection, shall be allowed 
access to the territory of  the relevant Member State with a view to launching 
relevant  procedures.  Third-country  authorities  shall  accept  the  transfer  of  the 
person concerned into Member State territory. 

 Arrest  of  a  person  or  seizure  of  property:  If  Member  State  border  guards 
become  aware  of  facts  justifying  the  arrest  or  placing  under  protection  of  a 
person or seizure of property, they shall act in accordance with their  national 
and  applicable  Union  legislation.  Third-country  authorities  must  accept  a 
transfer of the concerned person or object into Member State territory. 

 Third-country  nationals  entering  their  country  of  citizenship:  Member  State 
border  guards  shall  not  prevent  citizens  of  the  third  country  concerned  from 
entering  their  country  of  citizenship.  If  there  are  reasons  justifying  refusal  of 
exit  from  the  Member  State  under  Member  State  legislation,  Member  State 
border guards shall inform third-country authorities of these reasons and third-
country  authorities  shall  assure  an  appropriate  follow-up  in  accordance  with 
national and international law. 

1.1.4.4.  Before  concluding  or  amending  any  bilateral  Agreement  on  joint  border 
crossing points with a neighbouring third country, the Member State concerned shall 
consult  the  Commission  as  to  the  compatibility  of  the  Agreement  with  this 
Regulation. 

If the Commission considers the Agreement to be incompatible with this Regulation, 
it  shall  notify  the  Member  State  concerned.  The  Member  State  shall  take  all 
appropriate steps to amend the Agreement within a reasonable period in such a way 
as to eliminate the incompatibilities established." 

(b)  points 1.2.1. and 1.2.2. are replaced by the following: 

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"1.2.1. Checks shall be carried out both on train passengers and on railway staff on 
trains  crossing  external  borders,  including  those  on  goods  trains  or  empty  trains. 
Member  States may  conclude  bilateral agreements on how to conduct those checks 
respecting the principles set out in point 1.1.4. Those checks shall be carried out in 
one of the following ways: 

–  in  the  first  station  of  arrival  or  last  station  of  departure  on  the  territory  of  a 

Member State, 

–  on  board  the  train,  during  transit  between  the  last  station  of  departure  in  a  third 
country and the first station of arrival on the territory of a Member State or vice 
versa, 

–  in  the  last  station  of  departure  or  the  first  station  of  arrival  on  the  territory  of  a 

third country. 

1.2.2. In  addition,  in  order  to  facilitate  rail  traffic  flows  of  high-speed  passenger 
trains,  the  Member  States  on  the  itinerary  of  these  trains  from  third  countries  may 
also  decide,  by  common  agreement  with  third  countries  concerned  respecting  the 
principles set out in point 1.1.4, to carry out entry checks on persons in trains from 
third countries in either one of the following ways: 

–  in the stations in a third country where persons board the train, 

–  in the stations where persons disembark within the territory of the Member States, 

on board the train during transit between stations on the territory of a third country 
and stations on the territory of the Member States, provided that the persons stay on 
board the train." 

(4) 

In Annex VI, point 3 is amended as follows: 

(a) 

in point 3.1.1., the second sentence is replaced by the following: 

"Member States may conclude bilateral agreements according to which checks may 
also  be  carried  out  during  crossings  or,  upon  the  ship´s  arrival  or  departure,  in  the 
territory of a third country, respecting the principles set out in point 1.1.4. 

(b)  points 3.1.2., 3.1.3., 3.1.4. and 3.1.5. are replaced by the following: 

"3.1.2. 
The master or any other person  duly authorised by the  operator  of the 
ship (in both cases hereinafter referred to as ‘master’), shall draw up a list of the crew 
and any passengers containing the information required in the International Maritime 
Organization  (IMO)  Convention  on  Facilitation  of  International  Maritime  Traffic 
(FAL) form 5 (crew list) and 6 (passenger list) as well as, where applicable, the visa 
or residence permit numbers at the latest  

–  twenty-four hours before arriving in the port, or  

–  at the latest at the time the ship leaves the previous port, if the voyage time is less 

than twenty-four hours, or  

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–  if the port of call is not known or it is changed during the voyage, as soon as this 

information is available. 

The  master  shall  communicate  the  list(s)  to  the  relevant  competent  authority 
appointed  by  that  Member  State  (border  guards  or  port  or  other  authorities,  which 
shall forward it without delay to the border guards). 

3.1.3. A confirmation of receipt shall be returned to the master, who shall produce it 
on request when the ship is in port. 

3.1.4. The master shall promptly report to the competent authority any changes to the 
composition of the crew or the number of passengers.  

In  addition,  the  master  shall  notify  the  competent  authorities  promptly,  and  within 
the  time-limit  set  out  in  point  3.1.2.,  of  the  presence  on  board  of  stowaways. 
Stowaways will, however, remain under the responsibility of the master. 

By  way  of  derogation  from  Articles  4  and  7,  no  systematic  border  checks  shall  be 
carried out on persons staying aboard. Nevertheless a physical inspection of the ship 
and  personal  checks  of  the  persons  staying  aboard  shall  be  carried  out  by  border 
guards  on  the  basis  of  an  assessment  of  the  risks  related  to  internal  security  and 
illegal immigration.  

3.1.5. The master shall notify the competent authority of the ship's departure in due 
time and in accordance with the rules in force in the port concerned."  

(c) 

point 3.2.1. is replaced by the following: 

"3.2.1. 
The  cruise  ship's  master  shall  transmit  to  the  respective  competent 
authority the itinerary and the programme of the cruise, within the time-limit set out 
in point 3.1.2." 

(d) 

in point 3.2.2., the second subparagraph is replaced by the following:  

"Nevertheless, on the basis of an assessment of the risks related to internal security 
and  illegal  immigration,  checks  shall  be  carried  out  on  the  crew  and  passengers  of 
those ships.” 

in  points  3.2.3.(a)  and  3.2.3.(b)  the  reference  "point  3.2.4"  is  replaced  by  the 

(e) 
reference "point 3.1.2."; 

(f) 

in point 3.2.3.(e), the second subparagraph is replaced by the following:  

"Nevertheless, on the basis of an assessment of the risks related to internal security 
and  illegal  immigration,  checks  shall  be  carried  out  on  the  crew  and  passengers  of 
those ships.” 

(g)  point 3.2.4. is deleted; 

(h) 

in point 3.2.9. the second subparagraph is deleted 

(i) 

in point 3.2.10., the following point (i) is added: 

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"(i)  Point 3.1.2. (obligation to submit passenger and crew lists) does not apply. If a 
list of the persons on board has to be drawn up in accordance with Council Directive 
98/41/EC*, a copy of this list shall be transmitted not later than thirty minutes after 
departure from a third-country port by the master to the competent authority of the 
port of arrival in the territory of the Member States. 

____________________ 

* 

OJ L 188, 2.7.1998, p. 35." 

(j) 

the following point 3.2.11. is added: 

"3.2.11.Where  a  ferry  from  a  third  country  with  more  than  one  stop  within  the 
territory of the Member States takes passengers on board only for the remaining leg 
within that territory, these passengers shall be subject to an exit check at the port of 
departure and an entry check at the port of arrival. 

Checks  on  passengers  who,  during  those  stop-overs,  are  already  on  board  the  ferry 
and have not boarded in the territory of the Member States shall be carried out at the 
port of arrival." 

(5) 

Annex VII point 3 is amended as follows: 

(a) 

point 3.1. and point 3.2. are replaced by the following: 

“By way of derogation from Articles 4 and 7, Member States may authorise seamen 
holding  a  seafarer's  identity  document  issued  in  accordance  with  the  International 
Labour  Organization  (ILO)  Seafarers'  Identity  Documents  Convention  No  108 
(1958) and No 185 (2003), the London Convention of 9 April 1965 and the relevant 
national law, to enter and exit the territory of the Member States by going ashore to 
stay  in  the  area  of  the  port  where  their  ships  call  or  in  the  adjacent  municipalities 
without  presenting  themselves  at  a  border  crossing  point,  on  condition  that  they 
appear  on  the  crew  list,  which  has  previously  been  submitted  for  checking  by  the 
competent authorities, of the ship to which they belong. 

However,  according  to  the  assessment  of  the  risks  of  internal  security  and  illegal 
immigration, seamen shall be subject to a check in accordance with Article 7 by the 
border guards before they go ashore.” 

(6) 

In Annex VII point 6, the following points 6.4. and 6.5. are added: 

"6.4.  Member  States  shall  nominate  national  contact  points  for  consultation  on 
minors  and  inform  the  Commission  thereof.  A  list  of  these  national  contact  points 
shall be made available to Member States by the Commission.  

6.5.  In case of doubt as to any of the circumstances set out in points 6.1., 6.2. and 
6.3.,  border  guards  shall  make  use  of  the  list  of  national  contact  points  for 
consultation on minors." 

(7) 

In Annex VII the following points 7 and 8 are added:  

"7.  Rescue services, police and fire brigades  

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The arrangements for the entry and exit of members of rescue services, police 
and fire brigades acting in emergency situations shall be laid down by national 
law  and,  where  applicable,  by  bilateral  agreements.  These  arrangements  may 
provide for derogations from Articles 4, 5 and 7. 

8.  Offshore workers 

By way of derogation from Articles 4 and 7, offshore workers (working on oil-
platforms, maritime wind parks etc.) who regularly return by sea or air to the 
territory of the Member States without having stayed in the territory of a third 
country shall not be systematically checked.  

Nevertheless,  an  assessment  of  the  risks  of  illegal  immigration,  in  particular 
where the coastline of a third country is located in the immediate vicinity of an 
offshore site, shall be taken into account in order to determine the frequency of 
the checks to be carried out." 

(8) 

In  Annex  VIII  in  the  standard  form,  the  phrase  "entry  stamp"  is  replaced  by  the 
phrase  "entry  or  exit  stamp"  and  the  word  "entered"  is  replaced  by  the  phrase 
"entered or left". 

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