COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Biannual report on the functioning of the Schengen area 1 November 2011 - 30 April 2012
Date: 2012-05-16
Institutions: European Commission
Subjects: Bulgaria, EU visa policy, Romania, Schengen Information System, external border of the EU

EUROPEAN COMMISSION 

Brussels, 16.5.2012  
COM(2012) 230 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Biannual report on the functioning of the Schengen area 
1 November 2011 - 30 April 2012 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Biannual report on the functioning of the Schengen area 
1 November 2011 - 30 April 2012 

1. 

INTRODUCTION 

The  right  to  free  movement  of  persons  is  a  cornerstone  of  the  European  Union  and  the 
Schengen area without internal border control is one of the most valued achievements of EU 
integration. The Schengen cooperation was established on the initiative of five EU countries – 
Belgium,  France,  Germany,  Luxembourg  and  the  Netherlands  –  through  an  agreement  of 
1985  and  an  implementing  convention  of  1990,  both  signed  in  the  Luxembourg  town  of 
Schengen. In 1995, border control at internal borders was lifted and in 1997, these agreements 
were integrated into the framework of the European Union by the Treaty of Amsterdam. The 
Schengen Area has grown rapidly. Today it covers an area with 42 673 km of sea and 7 721 
km of external land borders, where over 400 million Europeans from 26 European countries 
can enjoy passport-free travel.  

The right to travel within the Schengen area without being subjected to border control is based 
on  the  condition  that  each  participating  state  is  fulfilling  its  obligations  according  to  the 
Schengen  acquis.  Therefore,  it  is  essential  that  the  European  institutions  maintain  vigilance 
over the functioning of the Schengen area and are ready to respond to any challenges it faces. 
Against  this  background,  the  Commission  in  its  Communication  'Schengen  governance  – 
strengthening  the  area  without  internal  border  control'  of  16  September  2011  announced  its 
intention to present a biannual overview to the European Union institutions on the functioning 
of Schengen. The Council on 8 March 2012 welcomed the Commission's intention to present 
regular  reports  to  the  European  Parliament  and  to  the  Council  on  the  functioning  of  the 
Schengen cooperation.  

The  purpose  of  these  reports  is  to  provide  the  basis  for  a  regular  debate  in  the  European 
Parliament and in the Council and so to contribute to the strengthening of political guidance 
and cooperation in the Schengen area. This first report covers the period 1 November 2011 - 
30  April  2012  and  complements  the  measures  proposed  in  the  Commission  legislative 
proposals on Schengen governance1, which are currently being discussed with the European 
Parliament  and  the  Council.  The  report  focuses  on  the  functioning  of  the  Schengen  area, 
leaving aside other issues that may be related to the area of freedom, security and justice, but 
do  not  concern  the  core  issue  at  hand,  and  issues  that  are  dealt  with  in  parallel  in  other 

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COM (2011) 561 Communication from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee and the Committee of the Regions – Schengen governance – 
strengthening  the  area  without  internal  border  control,  COM  (2011)  559  Amended  proposal  for  a 
regulation  of  the  European  Parliament  and  of  the  Council  on  the  establishment  of  an  evaluation  and 
monitoring mechanism to verify the application of the Schengen acquis and COM (2011) 560 Proposal 
for a regulation of the European Parliament and of the Council amending regulation (EC) No 562/2006 
in  order  to  provide  for  common  rules  on  the  reintroduction  of  border  control  at  internal  borders  in 
exceptional circumstances. 

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documents.  These  issues  include  i.a.  the  Commission  proposal  on  Eurosur2  and  the 
Commission proposal introducing a visa safeguard clause3 as well as questions dealt with in 
the  Communication  on  the  Global  Approach  to  Migration  and  Mobility4  and  the  Annual 
Report  on  Migration  and  Asylum.  The  biannual  report  on  the  functioning  of  the  Schengen 
cooperation should be understood as part of this broader context.  

2. 

SITUATIONAL PICTURE 

2.1. 

Situation at the Schengen external borders  

The pressure at the Schengen external borders is focused at a limited number of hot spots.  

During  October-December  2011,  the  number  of  irregular  border  crossings  increased 
compared  to  the  previous  year,  to  nearly  30,000  crossings.  About  75  percent  of  those  were 
reported  from  the  Eastern  Mediterranean  route,  whereby  Afghans  and  Pakistanis  were  the 
most  frequent  nationalities.  The  Commission  continues  to  support  the  Member  States  in 
managing these mixed migration flows, i.a. through EU funding (notably the External Borders 
Fund), cooperation with relevant third countries and via EU Agencies (e.g. Frontex)5.  

The  pressure  at  the  Schengen  external  border  is  linked  to  developments  in  relevant  third 
countries, which was evident during the Arab Spring in 2011. The Commission notes that the 
situation  in  Syria  may  prompt  a  future  migration  flow  into  the  neighbouring  countries,  and 
also into the European Union. In October-December 2011, 578 Syrians were detected while 
attempting  to  cross  the  Schengen  external  land  border  between  the  official  border  crossing 
points, compared to 210 persons in the same quarter of 2010. 82 % of these were detected at 
the Greek external land border.  

A  more  detailed  situational  picture  can  be  found  in  Frontex  annual  risk  analysis  2012 
(http://frontex.europa.eu/assets/Attachment_Featured/Annual_Risk_Analysis_2012.pdf). 

The  Commission  will  continuously  assess  whether  the  current  balancing  of  support 
measures (i.a. EU funding and Frontex operations) between the current hot spots and the 
rest  of  the  external  border  is  appropriate  or  whether  another  prioritisation  should  be 
foreseen, taking into account on the one hand the pressure at the current hot spots and on 
the  other  hand  the  possible  displacement  effects  due  to  enhanced  border  control  at  these 
spots as well as new migration flows following developments in third countries. 

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COM (2011) 873 Proposal for a regulation of the European Parliament and of the Council establishing 
the European Border Surveillance System (EUROSUR).  
Proposal for a regulation of the European Parliament and of the Council amending Council regulation 
(EC)  No  539/2001  listing  the  third  countries  whose  nationals  must  be  in  possession  of  visas  when 
crossing the external borders and those whose nationals are exempt from that requirement.  
COM (2011) 743 Communication from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee and the Committee of the Regions – The Global Approach 
to Migration and Mobility 
Frontex quarterly risk analysis October-December 2011 

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2.2. 

Situation within the Schengen area 

The Schengen acquis allows third country nationals6 holding a residence permit or a long-stay 
visa issued by one Member State to travel to other Member States for up to three months in 
any  six  months  period.  However,  asylum  seekers  awaiting  a  decision  on  their  status  are 
exempted  from  this  right  until  the  final  assessment  of  their  application  for  protection.  In 
addition, a large majority of the third country nationals residing illegally within the Schengen 
area  have  entered  the  territory  legally,  but  then  remained  after  the  permitted  period 
(overstayers),  whereas  others  have  entered  illegally.  For  these  persons,  either  their  stay  is 
regularised by Member States in accordance with their national legislation or they should be 
subject to a return procedure. Many of these persons do not remain in the country of entry, but 
move on to other Member States.  

In  2011,  350,944  third  country  nationals  not  fulfilling  the  conditions  for  stay  were  detected 
within the Schengen area7, which constitutes a 9.1 % decrease compared to the previous year. 
The  top  nationalities  were  Afghanis,  Tunisians  and  Moroccans.  According  to  Frontex8, 
secondary movements, originating at the Greek-Turkish land border, have been detected at the 
land borders between the Western Balkans and both Slovenia and Hungary, at the sea border 
of southern Italy and at a range of European airports, particularly in the Netherlands, Belgium 
and Germany.  

There  is  limited  information  on  the  number  of  persons  without  the  right  to  stay  in  the 
Schengen area who are seeking to move to another Member State. However a number of one-
off data-gathering operations have provided at least some basic statistics. The most recent of 
these,  operation  DEMETER9,  was  carried  out  from  24  to  30  October  2011,  in  21  Member 
States (i.a. France, Italy and Greece did not participate). During this week, the participating 
Member  States,  as  part  of  their  daily  work,  filled  out  a  reporting  form  on  each  incident  of 
suspected illegal residence in their territory. The reports were then sent to the Polish Border 
Guard,  which  compiled  and  analyzed  the  data.  The  aim  of  the  operation  was  to  collect 
information on migration flows in EU Member States, regarding in particular: 

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– 

– 

Migratory pressures in various countries, 

main routes of movement of irregular migrants, 

main destination countries of migration, 

countries of origin of irregular migrants and 

places of detection of irregular migrants and means of transport used. 

During  the  operation,  1936  third  country  nationals  from  104  different  countries  were 
apprehended. The largest number of irregular migrants were found in Germany (360 persons), 
Spain (290 persons) and Hungary (260 persons). A majority had entered the Schengen area in 
Spain (207 persons), Greece (180 persons), Cyprus (161 persons) and Poland (121 persons). 

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For the purposes of this report, non-EU family members of EU citizens are not covered when referring 
to  third  country  nationals,  given  the  privileged  status  they  enjoy  under  EU  law  on  free  movement  of 
persons (Directive 2011/38/EC) and the Schengen acquis. 
Frontex annual risk analysis 2012 
Frontex annual risk analysis 2012 
Summary report by the Polish Border Guard Headquarters, November 2011 

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The  main  countries  of  destination  were  Spain  (288  persons),  Germany  (264  persons)  and 
Austria (140 persons).  

The conclusions from these operations display a need for continuously trying to improve the 
monitoring and analysis of migration flows within the Schengen area. This could be done i.a. 
by biannually carrying out DEMETER-style operations and regularly exchanging information 
at  the  European  Union  level.  The  Commission  welcomes  the  coordination  by  the  Danish 
presidency of Operation Balder from 16 to 22 April 2012. 

Alongside  reliable  information  on  third-country  nationals  residing  illegally  within  the 
Schengen  area,  the  implementation  of  the  directive  on  sanctions  and  measures  against 
employers10 remains an important tool in the fight against illegal stay within the territory.  

In addition to current and planned initiatives (i.a. operation Balder), the Commission will 
deliberate on whether other measures could be taken in order to provide more information 
on migration flows within the Schengen area.  

3. 

APPLICATION OF THE SCHENGEN ACQUIS 

Cases of temporarily reintroduced control at internal borders 

3.1. 
Article  23  of  the  Schengen  Borders  Code11  provides  that,  exceptionally,  where  there  is  a 
serious  threat  to  public  policy  or  internal  security,  a  Member  State  may  reintroduce  border 
control  at  its  internal  borders.  The  Member  State  shall  as  soon  as  possible  notify  the  other 
Member States and the Commission accordingly. Moreover, a report shall be presented to the 
European Parliament, the Council and the Commission, outlining, in particular, the operation 
of the checks and the effectiveness of the reintroduction of border control. Since the entry into 
force  of  the  Schengen  Borders  Code  in  2006,  all  cases  of  reintroduced  control  have  been 
related  to  preventing  and  combating  different  types  of  crime  in  connection  with  high  level 
meetings or major sports events.  

During the period 1 November 2011-30 April 2012, control at the internal borders has been 
reintroduced only twice. France notified the Commission on 4 October 2011 that, because of 
the G-20 summit of Heads  of State  and Government, held in Cannes on 3 and 4 November 
2011,  it  planned  to  reintroduce  control  at  its  border  with  Italy  between  24  October  and  5 
Novermber  2011.  France  subsequently  reported  to  the  Commission  that,  during  this  period, 
38,620 persons were checked on entry (out of 563,158 persons crossing) and 15,303 persons 
were checked on exit (out of 605,062 crossings). 443 persons were refused entry, the majority 
because they did not possess valid travel documents.  

On  20  April  2012,  Spain  notified  the  Commission  that  due  to  the  meeting  of  the  European 
Central Bank in Barcelona on 2-4 May 2012, it was to reintroduce control at the internal land 
border with France as well as at Barcelona and Gerona airports during the period of 28 April 
until 4 May 2012.  

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Directive 2009/52/EC of the European Parliament and of the Council providing for minimum standards 
on sanctions and measures against employers of illegally staying third-country nationals 
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) 

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3.2.  Maintaining the absence of internal border control 

Article 22 of the Schengen Borders Code requires Member States to remove all obstacles to 
fluid traffic flow at road crossing points at internal borders, in particular any speed limits not 
exclusively based on road safety considerations. Following action by the Commission, France 
has  progressively  removed  obstacles  hindering  fluid  traffic  flow  at  several  road  crossing 
points at its internal borders with Spain, Belgium and Luxembourg. These measures allowed 
the Commission to, in January 2012, close the relevant infringement case against France.  

The  Netherlands  plans  to  install  a  camera  surveillance  system  (@migo-boras)  close  to  the 
internal borders, as technical support for mobile police checks. The Commission in November 
2011 addressed the Netherlands on a potential violation of the Schengen Borders Code, EU 
law  on  free  movement  of  EU  citizens  and  the  data  protection  provisions  of  EU  law. 
Explanations  were  requested  especially  as  regards  the  necessity  and  proportionality  of  the 
system and the Commission is currently following up on the Dutch replies. 

Moreover,  in  the  period  1  November  2011  –  30  April  2012,  the  Commission  requested 
information as to the correct implementation of EU law and namely the Schengen acquis in 
three  new  cases  and  continued  working  on  eight  existing  cases,  addressing  in  total  ten 
different  Member  States  (Austria,  Belgium,  the  Czech  Republic,  Estonia,  Germany,  Italy, 
Latvia,  the  Netherlands,  Slovakia  and  Sweden).  These  files  regard  mainly  whether  the 
carrying out of police checks close to the internal border have an effect equivalent to border 
checks (article 21 of the Schengen Borders Code) and the obligation to remove obstacles to 
fluid traffic flow, such as speed limitations, at road crossing-points at internal borders (article 
22  of  the  Schengen  Borders  Code).  In  all  cases,  the  exchange  of  information  with  the 
respective national authorities is still ongoing. 

3.3. 

Pending infringement cases related to the Schengen acquis 

Transposition of the Return Directive (2008/115/EC) into national legislation 

The  deadline  for  implementation  of  the  Return  Directive  (2008/115/EC)  expired  on  24 
December 2010. Twenty-six Member States have already adopted new legislation transposing 
the directive into their national legislation and taken onboard the common standards. By April 
2012,  only  Lithuania,  Poland  and  Iceland  had  not  yet  notified  full  transposition.  The 
Commission has launched infringements procedures against the Member States which did not 
comply with their transposition and notification obligation.  

A study launched in 2011 in order to evaluate the correct transposition of the Directive into 
national legislation, has produced its first results with eighteen reports now available and the 
rest  to  follow  in  the  course  of  2012.  The  Commission  will  thoroughly  examine  the 
transposition reports and pursue the full and correct application by the Member States of the 
provisions laid down in this directive.  

Application of the Schengen Borders Code 

In October 2009, allegations of serious difficulties faced by migrants in applying for asylum 
and  ill-treatment  by  Greece  of  asylum-seekers  and  potential  asylum-seekers,  including  the 
turning  back  of  persons  who  may  face  serious  harm  or  persecution,  led  the  Commission  to 
issue  a  letter  of  formal  notice  against  Greece.  The  Commission  takes  the  view  that  any 
violation  of  the  EU  asylum  acquis  and  the  Schengen  Borders  Code,  in  conjunction  with 

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fundamental rights enshrined in the Charter of Fundamental Rights and the general principles 
of EU law and the European Convention on Human Rights, needs to be addressed as a matter 
of urgency.  

The Commission recognises the considerable pressure faced by Greece as a result of the large 
number  of  persons  from  third  countries  entering  its  territory.  At  the  same  time,  the 
Commission  is  concerned  at  the  serious  deficiencies  of  the  Greek  asylum  system  and  the 
breach of fundamental rights. While acknowledging the Greek efforts to remedy the situation, 
the Commission will continue to closely monitor this matter and take the necessary steps to 
ensure that Greece abides by its legal obligations and benefits from the necessary support. 

3.4.  Weaknesses identified in the framework of the Schengen evaluation mechanism 

The Schengen area is based on mutual trust between the Member States in their capacity to 
implement  the  measures  allowing  for  the  lifting  of  controls  at  the  internal  borders,  in 
particular the control of the external border. In order to gain and maintain this mutual trust, 
the  Schengen  Member  States  in  1998  set  up  a  mechanism12,  for  verifying  whether  all 
preconditions for application of the Schengen acquis (i.e. lifting of border controls) have been 
met by Member States wanting to join the Schengen cooperation as well as veryfying that the 
Schengen  acquis  is  being  correctly  applied  by the  Member  States  already  implementing  the 
acquis. Member States are evaluated on a regular basis, by experts from the Member States, 
the Council general secretariat and the Commission. The evaluations are based on replies to 
questionnaires agreed by the Council as well as on-site visits and the findings are described in 
reports, including comments and recommendations for follow-up.  

In  the  period  1  November  2011-30  April  2012,  Schengen  evaluations  were  carried  out 
regarding air borders in Hungary, Malta and Slovenia, visa in the Czech Republic, Hungary, 
Malta and Slovenia, SIS/Sirene in Finland and Sweden, police cooperation in Malta, Slovenia, 
Sweden,  Iceland  and  Norway  and  data  protection  in  the  Czech  Republic,  Hungary,  Poland, 
Slovakia  and  Iceland.  The  reports  are  still  being  drafted,  but  are  expected  to  include  some 
positive as well as negative comments and recommendations on issues such as training, use of 
risk  analysis,  information  exchange,  international  cooperation  and  infrastructure  at  border 
crossing points and embassies/consulates. Although there is generally room for improvement, 
none of these evaluations have shown the type of deficiencies that would require immediate 
action by the Commission.  

During the Schengen evaluation of Greece in 2010-2011, several serious shortcomings were 
detected,  especially  as  regards  control  of  the  external  land-  and  sea  borders.  Given  the 
extensive scope of the recommendations, Greece has drawn up a national action plan on how 
to  remedy  these  shortcomings.  This  includes  i.a.  enhanced  coordination  of  border 
management  issues,  increased  deployment  of  personnel  and  equipment,  improvement  of 
infrastructure, a new programme for training as well as a review of the relevant legislation. In 
order  to  assess  the  progress  so  far  and  to  identify  topics  where  Member  States  could  offer 
assistance, a review mission is scheduled for 28 May to 2 June 2012. This mission will go to 
the  Athens  International  Airport  'Eleftherios  Venizelos',  the  Port  of  Piraeus  and  the  Evros 
region. While reiterating its commitment to support the Greek efforts to manage its external 
borders,  the  Commission  invites  Greece  to  continue  the  implementation  of  its  Schengen 

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SCH/Com-ex (98) 26 def. 

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action plan and to establish a comprehensive and systematic identification of needs as well as 
of available resources. 

For an indicative calendar of Schengen evaluations in May-October 2012, see Annex I.  

3.5. 

Lifting of control at internal borders with Bulgaria and Romania 

Even  though  the  Council  in  June  2011  concluded  that  both  Romania  and  Bulgaria  formally 
fulfil the criteria to apply in  full the Schengen  acquis, it  has not  been  able to decide on the 
lifting  of  control  at  the  internal  borders  to  these  countries.  On  2  March  2012,  the  European 
Council requested the Council to identify and implement measures which would contribute to 
the successful enlargement of the Schengen Area to include Romania and Bulgaria and asked 
the  Council  to  revert  to  this  issue  in  order  to  adopt  its  decision  at  the  meeting  of  the  JHA 
Council in September 2012. The Commission stands ready to support any measure that might 
be required to ensure that the Council would take a positive decision in September.  

4. 

FLANKING MEASURES 

4.1. 

Use of the Schengen Information System 

The  Schengen  Information  System  (SIS)  is  a  common  information  system,  allowing  the 
Member  States'  competent  authorities  to  obtain  information  related  to  alerts  on  persons  and 
objects. This information can be used for police and judicial cooperation in criminal matters 
as  well  as  for  checks  on  persons  at  the  Schengen  external  borders  or  on  their  national 
territories  and  for  the  issuance  of  visas  and  residence  permits.  Whereas  the  SIS  is  very 
successful  and  generates  tens  of  thousands  of  hits  per  year,  the  Commission  is  working 
together with the Council to identify redundant working practices and rules.  

Although Member States use a common legal basis for cooperation, the implementation can 
vary due to different national laws and procedures. This means i.a. that some Member States, 
using the SIS, have considerable success in tracking the movements of their serious criminals 
within other Member States, whereas other Member States make little use of this possibility.  

Moreover,  whereas  cooperation  between  the  authorities  responsible  for  the  exchange  of 
supplementary  information  (the  SIRENE  bureaux)  may  be  exemplary,  delays  often  occur 
within Member States. When a person has been detained at a border and a SIRENE bureau 
urgently  needs  information  on  the  person's  background,  it  is  not  acceptable  to  have  to  wait 
hours or even days for this key piece of information. Such a detention cannot be justified and 
a person who has been detained for a legitimate reason may have to be released due to lack of 
information. 

Not all Member States create, as a matter of course, alerts to highlight that a travel document 
has been invalidated by the issuing authority. This permits the third country national holding 
the document to use it illegally to try to enter the Schengen area, even though they may have 
been excluded following a criminal conviction. 

The Commission will assess whether measures should be taken in order for the SIS and the 
SIRENE bureaux to be used to their full potential and if so, whether other measures could 
be considered, in addition to the issues above.  

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4.2. 

Use of the Visa Information System 

The  Visa  Information  System  (VIS)  is  a  system  for  exchange  of  information  on  short-stay 
visas,  enabling  the  competent  authorities  of  the  Schengen  States  to  process  data  on  visa 
applications and on all visas that are issued, refused, annulled, revoked or extended. The VIS 
was successfully launched on 11 October 2011 in Member States' embassies and consulates in 
the  first  region  of  deployment  (Algeria,  Egypt,  Libya,  Mauritania,  Morocco  and  Tunisia). 
According to the current planning, the VIS will start operating on 10 May 2012 in the second 
region  (Israel,  Jordan,  Lebanon  and  Syria)  and  on  2  October  2012  in  the  third  region 
(Afghanistan, Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates 
and  Yemen).  The  VIS  is  working  well  and  by  30  April  2012,  the  system  had  processed 
775,489 applications, 611,419 issued visas and 99,242 refusals.  

4.3. 

Visa policy and readmission agreements 

Post-visa liberalisation monitoring mechanism for Western Balkan countries 

Following the rapid increase of asylum applications in some Member States after the granting 
of visa liberalisation to the Former Yugoslav Republic of Macedonia, Montenegro and Serbia 
in  December  2009  as  well  as  Albania  and  Bosnia  and  Herzegovina  in  December  2010,  the 
Commission  established  a  post-visa  liberalisation  monitoring  mechanism  for  all  Western 
Balkan  countries  that  achieved  visa  liberalisation.  In  December  2011,  the  Commission 
presented its second report on this monitoring13, picturing the recent actions undertaken, the 
current  state  of  play  and  proposed  next  steps.  Although  the  total  number  of  asylum  seekers 
from the region has decreased in the second half of 2011 in comparison with the same period 
in 2010, following fewer asylum seekers from Serbia and the Former Yugoslav Republic of 
Macedonia,  this  is  counteracted  by  a  considerable  increase  of  asylum  seekers  from  Albania 
and  Bosnia  and  Herzegovina.  Most  asylum  claims  (based  on  lack  of  health  care, 
unemployment  and  lack  of  schooling)  are  judged  to  be  unfounded,  whereby  the  asylum 
recognition rate is very low. Belgium, Germany, Luxembourg and Sweden remain the main 
destination  countries,  partly  due  to  the  duration  of  asylum  procedures  and  the  associated 
length  of  authorised  stay.  These  Member  States  have  taken  measures  to  decrease  the 
processing time, but there is still room for improvement as regards i.a. information exchange, 
investigation  of  facilitators,  strengthened  border  control,  targeted  awareness  campaigns  and 
assistance to minority populations (in particular Roma communities).  

On this basis, the Commission will analyse whether the post-visa liberalisation monitoring 
mechanism  (including  the  Frontex  alert  mechanism)  provides  the  necessary  tools  to 
monitor  the  migration  flows  following  the  visa  liberalisation  for  the  Western  Balkan 
countries or if there are necessary improvements of this monitoring.  

Readmission agreements 

The  conclusion  of  readmission  agreements  forms  a  central  part  of  the  European  Union's 
cooperation  with  third  countries  in  managing  migration  and  asylum.  The  Commission  in 
November  2011  finalised  the  negotiations  on  a  readmission  agreement  with  Cape  Verde, 
which now opens the way to start the procedure for formal ratification. Technical negotiations 
with  Turkey  have  been  finalised  and  the  signature  of  the  readmission  agreement  and  the 

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SEC  (2011)  1570  Commission  staff  working  paper  -  Second  report  on  the  post-visa  liberalisation 
monitoring  for  the  Western  Balkan  countries  in  accordance  with  the  Commission  Statement  of  8 
November 2010 

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launch of a dialogue on visa liberalisation are expected. Furthermore, negotiations have been 
launched with Armenia and Azerbaijan on visa facilitation and readmission agreements.  

5. 

GUIDELINES ON THE FUNCTIONING OF THE SCHENGEN AREA 

Measures  carried  out  within  the  framework  of  the  Schengen  cooperation  is  a  mixed 
competence, with responsibilities for the European Union as well as for the Member States. 
The proper functioning of the Schengen area depends not only on the uniform application of 
the EU acquis, but also on the use of national competences in line with the Schengen spirit. 
This  fact  may  be  illustrated  by  two  examples:  Member  States  may  carry  out  police  checks 
within their territories, in order to verify a person's right to stay within the territory, but these 
checks  must  not  have  an  effect  equivalent  to  border  control.  Further,  whereas  it  is  the 
competence  of  each  Member  State  to  issue  travel  documents  and  residence  permits  to  third 
country nationals, its decisions are directly linked to the right to travel within the Schengen 
area and are therefore a concern also to the other Member States.  

In  its  Communications  on  migration14  and  on  Schengen  governance15,  the  Commission 
committed  itself  to  issue  guidelines  in  order  to  ensure  a  coherent  implementation  and 
interpretation  of  the  Schengen  acquis.  The  guidelines  on  issuance  of  residence  permits  and 
travel documents as well as police measures at internal borders, which were developed by the 
Commission in consultation with the Member States, are to be found in Annex II.  

14 

15 

COM (2011) 248 Communication from the Commission to the European Parliament, the Council, the 
Economic and Social Committee and the Committee of the Regions – Communication on Migration 
COM (2011) 561 Communication from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee and the Committee of the Regions – Schengen governance – 
strengthening the area without internal border control 

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ANNEX I: Indicative calendar of Schengen evaluations in May –October 201216 

Time 

Member States 

Theme 

6-12 May 2012 

Estonia, Latvia, Lithuania 

Sea borders 

28 May-2 June 2012 

Greece 

Peer-to-peer 

17-22 June 2012 

Hungary, Slovakia 

Police cooperation 

1-7 July 2012 

Estonia, Latvia, Lithuania 

Air borders 

23-27 July 2012 

Malta, Slovenia 

Data protection 

9–20 September 2012  Malta, Poland, Slovenia  

Sea borders 

23-29 September 2012 The Czech Republic, Poland Police cooperation 

7-12 October 2012 

Denmark, Iceland, Norway 

SIS/Sirene 

7-13 October 2012 

Latvia, Lithuania 

Visa 

14-20 October 2012 

Estonia, Latvia, Lithuania 

Data protection 

16 

Council document 5090/2/12 SCH-EVAL 1 COMIX 6 REV 2 

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ANNEX  II:  Guidelines  to  ensure  a  coherent  implementation  and  interpretation  of  the 
Schengen acquis  

On  16  September  2011,  the  Commission  presented  legislative  proposals  consisting  of 
proposals on a Schengen evaluation mechanism and an amendment of the Schengen Borders 
Code in order to further strengthen the Schengen governance17. In addition, the Commission 
announced18 that it would explore areas where the development of guidelines could ensure a 
more coherent implementation of the Schengen rules. The Commission identified the issuance 
of residence permits and travel documents, as well as police measures at internal borders, as 
appropriate  topics  for  such  guidelines  and  organised  two  meetings  with  Member  States' 
experts,  on  20  July  2011  and  28  November  2011,  to  discuss  the  scope  and  content  of  such 
guidelines. The issuance of residence permits and travel documents was also discussed with 
Member  States  at  the  meeting  of  the  National  Contact  Points  of  the  Mutual  information 
Mechanism held on 1 December 2011.  

The  guidelines  presented  below  take  into  account  valuable  observations  and  suggestions 
submitted by the Member States during this consultation. 

Issuing  of  temporary  residence  permits  and  travel  documents  to  non-EU 

A. 
citizens19 

I. 

Introduction 

The Schengen acquis provides a harmonisation of the rules on short stays (the common visa 
policy,  including  the  mutual  recognition  of  short  stay  visas  on  the  basis  of  the  harmonised 
procedures and conditions for issuing visas set out in the Visa Code). The Schengen acquis 
does not provide for a harmonisation of the conditions for issuing long stay visas, residence 
permits and travel documents to non-EU citizens. These issues are governed by the national 
law of the Member States.  

The EU acquis in the area of migration and asylum contains provisions on the conditions and 
procedures for issuing residence permits to certain categories of persons. Thus, e.g. as regards 
asylum  seekers20,  no  residence  permits  are  to  be  issued  under  EU  law,  but  only  an 
authorisation to remain on the territory of the Member State.  

In  respect  of  beneficiaries  of  international  protection21,  refugees  are  to  be  issued  residence 
permits valid for at least 3 years and renewable, whereas beneficiaries of subsidiary protection 
are to be issued residence permits valid for at least 1 year and renewable. Family members of 
beneficiaries of protection are to be issued residence permits as well, but their validity can be 
shorter.  

If  temporary  protection  is  declared  in  accordance  with  the  Temporary  Protection  Directive, 
Member States are to provide its beneficiaries with residence permits for the entire duration of 

17 
18 
19 

20 
21 

COM(559) 2011 and COM (560)2011 
COM(2011) 561 
For  the  purposes  of  these  guidelines,  non-EU  family  members  of  EU  citizens  are  not  covered  when 
referring  to  third  country  nationals,  given  the  privileged  status  they  enjoy  under  EU  law  on  free 
movement of persons (Directive 2004:38) and the Schengen acquis 
Article 6 of Reception Conditions Directive 2003/09/EC 
Article 24 of Qualification Directive 2004/83/EC 

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the protection22. It is also the case for their family members who are reunited according to the 
rules of the Directive23. 

As  regards  the  other  categories,  in  particular  humanitarian  cases  or  regularisations,  national 
rules are applied.  

It remains in the national competence of Member States to grant an authorisation to stay and/ 
or  a  travel  document  to  non-EU  citizens  whose  situation  is  not  covered  by  EU  law.  Such 
decisions are taken on the basis of national rules. 

With regard to the holders of long stay visas and residence permits, the Schengen acquis only 
states the principle of the equivalence between a long stay visa/residence permit and a short 
stay  visa24:  according  to  this  principle,  the  holder  of  a  long  stay  visa  or  residence  permit 
issued by a Schengen state is entitled to travel to the other Schengen states for short stay, if 
they meet the entry conditions, i.e. if they are in possession of a valid travel document; justify 
the purpose and conditions of the intended stay and have sufficient means of subsistence; are 
not a person for whom an alert has been issued in the SIS for the purpose of refusing entry; 
and are not considered to be a threat  to  public policy, internal security, public health or  the 
international relations of any of the Member States25. It is the responsibility of the competent 
authorities of the Member State to which the holder of a residence permit issued by another 
Member  State  travels,  to  check  whether  the  person  concerned  fulfils  these  conditions.  This 
check can be done on the territory of the Member States. Should checks at the internal borders 
have  been  reintroduced,  in  accordance  with  the  Schengen  Borders  Code26  (hereinafter  'the 
Code'), this verification could take place at the internal borders. This also applies to a non-EU 
citizen who holds a provisional residence permit and a travel document issued by a Schengen 
State27.  

Member States have the obligation to notify to the Commission their types of long stay visa, 
residence permits and provisional residence permits that are equivalent to a short stay visa and 
the  Commission  makes  this  information  available  to  the  other  Member  States28.  Other 
Member  States  are  obliged  to  accept  that  these  long  stay  visas  and  residence  permits  are 
equivalent to a short stay visa for travelling within the Schengen area. 

The EU legal framework does not define conditions for issuing travel documents to non-EU 
citizens, except for the provisions on the issuing of travel documents to persons recognised as 
in  need  of  international  protection.  Thus,  travel  documents  must  be  provided  for  refugees 
(obligation  under  the  Geneva  Convention)  and  for  beneficiaries  of  subsidiary  protection  (at 
least  when  they  need  to  travel  for  humanitarian  reasons),  unless  compelling  reasons  of 
national security or public order otherwise require29. Exceptionally, travel documents could be 

22 
23 
24 

25 

26 

27 
28 

29 

Article 8 of Temporary Protection Directive 2001/55/EC 
Article 15(6) of Temporary Protection Directive 2001/55/EC 
Art. 21 (1) and (3) of the Schengen Convention as amended by Regulation (EU) n° 265/2010 of the EP 
and the Council of 25 March 2010, OJ n° L85, 31.3.2010, p. 
Article 5 of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the 
movement of persons across borders (Schengen Borders Code), OJ L 105 of 13.4.2006, p.1  
Article  23  et  seq  of  Regulation  (EC)  No  562/2006  establishing  a  Community  Code  on  the  rules 
governing the movement of persons across borders, OJ L 105 of 13.4.2006, p.1 
Article 21(2) of the Schengen Convention. 
See  Annex  22  of  the  Commission  Recommendation  06/11/2006  establishing  a  common  "Practical 
Handbook  for  Border  Guards  (Schengen  Handbook)  to  be  used  by  Member  States'  competent 
authorities when carrying out the border control on persons, C(2006) 5186 final 
Article 25 of the Qualification Directive 2004/83/EC  

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provided  to  asylum  seekers  for  serious  humanitarian  reasons30.  A  laissez-passer  could  be 
supplied to an asylum applicant subject to a Dublin transfer, with the purpose of identifying 
the  person  and  allowing  him/her  to  enter  the  territory  of  the  responsible  Member  State31. 
Finally, if temporary protection is declared, Member States are to use a specific type of pass 
for transfers of beneficiaries between Member States32.  

II. 

Guidelines for Member States 

Events  in  2011  have  shown  that  the  issuing  of  long  stay  visas,  residence  permits  including 
provisional  ones  and  travel  documents  to  non-EU  citizens,  in  cases  of  a  sudden  large  scale 
inflow  of  migrants,  may  impact  negatively  on  the  proper  functioning  of  the  Schengen  area 
without internal borders.  

If a Member state is confronted with a sudden large scale inflow of non-EU citizen migrants 
and where this does not trigger the application of the Temporary Protection Directive: 

1) 

2) 

3) 

This Member State should inform in a timely manner the other Member States and 
the  Commission  of  the  decisions  it  intends  to  take  with  regard  to  the  issuing  of 
residence  permits  including  provisional  ones  and  travel  documents  to  the  non-EU 
citizens concerned in the framework of the Mutual Information Mechanism (MIM).33 
On  the  basis  of  the  information  provided,  ad  hoc  debates  could  be  initiated  by  the 
Commission working together with the Council Presidency and in consultation with 
the  Member  State  providing  the  information,  at  an  appropriate  level  within  the 
Council. 

If  a  Member  State  decides  to  issue  residence  permits  and  has  the  choice  amongst 
different  types  of  residence  permits  in  accordance  with  its  national  legislation,  it 
should opt for issuing residence permits or provisional residence permits that are not 
equivalent  to  a  short  stay  visa  if  the  migrants  do  not  meet  the  conditions  for 
travelling within the Schengen area. 

When issuing residence permits or provisional residence permits that are equivalent 
to a short stay visa, it should inform the holders of such documents in an appropriate 
and efficient way, about the conditions on which they can (or can not) travel within 
the  Schengen  area.  Members  States  are  encouraged  to  provide  this  information  on 
their national websites which are linked to the EU Immigration Portal. 

Furthermore: 

1) 

30 
31 

32 
33 
34 

On  the  basis  of  the  information  already  provided  by  the  European  Migration 
Network  (EMN)  study  on  non-EU  Harmonised  Protection  Statuses34,  which 
identified  the  many  conditions  for  and  types  of  residence  permits/long  stay  visas 
issued for protection purposes, Member States should exchange information on their 
existing  national  practices  in  this  area  in  the  framework  of  the  Committee  on 
Immigration and Asylum (CIA).  

Article 6 of Reception Conditions Directive 2003/09/EC 
Article  19(3)  and  Article  20(1)(e)  of  Dublin  Regulation  343/2003  and  Article  7(2)  of  Dublin 
implementing regulation 1560/2003 
Article 26(5) of Temporary Protection Directive 2001/55/EC 
Established by Council Decision 2006/688/EC. 
Available from http://www.emn.europa.eu under "EMN Studies" 

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2) 

Member  States  should  be  ready  to  contribute  to  a  future  EMN  Ad-Hoc  Query  on 
details  of  national  legislation  on  the  conditions  under  which  Member  States  issue 
identity or travel documents to non-EU citizens who do not hold a travel document 
issued by their country of origin and on the existing practices in this area.  

For  its  part,  the  Commission  will  continue  to  promote  exchange  of  information  through  the 
MIM, CIA, EMN and other channels. 

B. 

I. 

Police measures in the internal border zones 

Introduction 

The  situation  might  arise  where  Member  States  consider  that,  in  order  to  more  effectively 
combat  cross-border  crime,  they  need  to  implement  additional  measures  in  their  internal 
border areas. While these measures must not have an effect equivalent to border checks, they 
may  still  have  an  adverse  impact  on  neighbouring  countries  and  on  the  free  movement  of 
persons,  including  EU  citizens  and  their  family  members.  Travellers  may  perceive  such 
measures as infringing on one of the fundamental achievements of the European Union. 

Title III of the Schengen Borders Code provides that internal borders between Schengen states 
may  be  crossed  at  any  point  without  a  border  check  on  persons,  irrespective  of  their 
nationality, being carried out. The abolition of border control at internal borders also entails 
the  abolition  of  border  surveillance.  This  does  not  preclude  the  right  of  Member  States  to 
exercise police powers by the competent national authorities under national law, including in 
the internal border zones, insofar as this exercise does not have an effect equivalent to border 
checks. The Code includes a non-exhaustive list of criteria to assess whether the exercise of 
police  powers  is  equivalent  to  border  checks  or  not.  Police  measures  are  for  instance  not 
considered  to  be  equivalent  to  border  checks  if  they  do  not  have  border  control  as  an 
objective, are based on general police information and experience regarding possible threats to 
public security and aim, in particular, to combat cross-border crime, are devised and executed 
in a manner clearly distinct from systematic checks on persons at the external borders and are 
carried out on the basis of spot-checks. 

In October 2010, the Commission reported to the European Parliament and to the Council on 
the  application  of  the  provisions  related  to  the  absence  of  internal  border  controls.  In  its 
report35,  the  Commission  concluded  that  the  setting  up  of  an  area  without  internal  borders 
where  the  free  movement  of  persons  is  ensured  represents  one  of  the  most  substantial  and 
tangible accomplishments of the Union. Any restrictions, such as police checks in the vicinity 
of  internal  borders,  are  perceived  by  citizens  as  hampering  their  right  to  free  movement. 
Persons cannot be checked solely because they are crossing an internal border, neither at the 
border not in the border areas.  

The  Commission  expressed  concern  in  the  report  about  difficulties  reported  by  travellers  in 
connection with alleged regular and systematic checks carried out by the national authorities 
of some Member States in internal border zones and committed itself to closely monitor the 
situation in the internal border zones to ensure the correct application of EU law.  

35 

Report from the Commission to the European Parliament and the Council on the application of Title III 
(Internal Borders) of the Schengen Borders Code, COM(2010) 554 final 

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On  22  June  2010,  in  a  landmark  judgment36  the  Court  of  Justice  of  the  EU  clarified  that 
national legislation conferring on the police authorities of a Member State the competence to 
check  the  identity  of  persons  present  exclusively  in  a  20-kilometres  internal  border  zone, 
independently of their behaviour and any particular circumstances presenting a risk to public 
order, for the purpose of verifying compliance with the obligation to hold or carry papers and 
documents required by law, without providing for the necessary framework to guarantee that 
the practical implementation of this competence does not have an effect equivalent to border 
checks, is in breach of Article 67(2) TFEU as well as Articles 20 and 21 of the Code.  

Following the judgement, the Commission requested Member States to adapt accordingly any 
national  legislation  conferring  specific  competences  on  national  police  authorities  within 
internal border zones.  

Consequently,  some  Member  States  modified  their  national  legislation  so  as  to  limit  the 
exercise  of  police  powers  in  internal  border  zones  in  relation  to  location,  specific  means  of 
transport  and  time  (e.g.  limitation  of  the  area  near  the  internal  border  where  checks  can  be 
carried out on international trains or vehicles after the crossing of the border; definition of a 
maximum  time  limit  per  day,  week  or  month,  limitation  of  a  maximum  number  of  train 
carriages to be checked per train).  

II. 

1) 

2) 

3) 

Guidelines for Member States 

In accordance with the Schengen Borders Code, Member States may exercise police 
powers within their territories including in internal border zones, in order to verify a 
person's  right  to  stay  within  the  territory. However,  these  checks  are  to  be  targeted 
and  based  on  updated  and  concrete  police  information  and  experience  as  regards 
threats  to  public  security.  Consequently,  checks  may  only  be  carried  out  as  spot-
checks according to the assessment of the risk.  

Simply  moving  the  checks  from  the  internal  border  line  itself  to  an  area  e.g.  800 
metres  behind  this  line  would  not  suffice  to  consider  that  such  checks  were  not 
equivalent to border checks.  

In case the need arises to carry out regular and systematic checks as a response to the 
security  situation  in  their  territories,  Member  States  could  envisage  the  temporary 
reintroduction of border control at the internal borders in accordance with the Code37.  

In  accordance  with  the  statement  by  the  Court  in  points  73  and  74  of  the  Melki 
judgment,  legislation  concerning  checks  only  in  internal  border  zones,  needs  to 
contain limitations in particular in relation to the intensity and frequency of controls. 
In addition, if a check does not depend upon the behaviour of the person checked or 
on  specific  circumstances  giving  rise  to  a  risk  of  breach  of  public  order,  it  must 
provide for the necessary framework to guide the practical application. 

Therefore, legislation containing precise objectives for carrying out these checks and 
possible limitations in time may provide for the necessary guarantees, in particular if 
they are based on general police information and experience. 

36 
37 

Joint Cases C–188/10 and C-189/10, Melki and Others 
Article 23 et seq.  

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4) 

When assessing the compatibility of police checks in internal border zones with the 
Schengen  acquis,  it  is  necessary  to  examine  how  these  checks  are  implemented  in 
practice.  Hence,  when  the  Commission  is  confronted  with  serious  allegations  of 
borders checks in internal border zones, as stated in the 2010 report, it needs to seek 
concrete  statistical  information  from  Member  States;  it  may  therefore  request  the 
Member  State  concerned  to  submit  information  on  checks  performed  at  the  border 
during a given period (time, locations, reasons and the national authority responsible) 
as well as on how these have contributed to reaching the aims laid down in national 
legislation or strategies, i.a. on combating cross-border crime.  

In this context, the existence of a risk assessment and the fact that the Member State 
concerned is taking measures not only in the internal border zone but in other parts of 
its  territory  will  be  taken  into  account  by  the  Commission.  Member  States  are 
therefore again encouraged, as already done in the Commission 2010 report, to take 
to  the  extent  possible  the  necessary  measures  to  collect  this  information,  in  the 
internal  border  zones  and  on  the  rest  of  their  territories.  This  will  then  make  it 
possible,  when  needed,  to  make  a  sound  assessment  that  checks  carried  out  in 
internal border zones are proportionate to the objectives. Moreover, these statistics, 
combined  with  ex  post  assessments  of  the  results  of  the  checks,  may  also  prove 
useful  for  the  Member  States  themselves  when  evaluating  national  strategies  and 
planning future deployment of resources. 

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