Proposal for a COUNCIL IMPLEMENTING DECISION setting out a recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk
Date: 2016-05-04
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU financing, Greece, admission of aliens, border control, cross-border cooperation, external border of the EU, free movement of persons, internal border of the EU, migration control, migratory movement

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 4.5.2016  COM(2016) 275 final 2016/140 (NLE)   Proposal for a COUNCIL IMPLEMENTING DECISION setting out a recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Introduction 

The EU is facing an unprecedented migratory and refugee crisis following a sharp increase of 
mixed  migratory  flows  since  the  summer  of  2015.  This  has  led  to  severe  difficulties  in 
ensuring efficient external border control in accordance with the Schengen acquis and in the 
reception  and  processing  of  migrants  arriving.  Wider  structural  deficiencies  in  the  way  the 
Union's external borders are protected have also become evident in this crisis. 

The  Hellenic  Republic  is,  mainly  due  to  its  geographical  situation,  particularly  affected  by 
these developments and has faced a dramatic increase in the number of migrants arriving on 
the  Aegean  islands.  The  massive  inflow  is  of  a  nature  that  would  put  the  external  border 
control of any Member State under severe pressure.  

Schengen Evaluation Mechanism 
In  accordance  with  Council  Regulation  (EU)  No  1053/20131  and  the  annual  evaluation 
programme for 20152, an unannounced on-site visit was carried out from 10 to 13 November 
2015 to evaluate the implementation of the Schengen acquis in the field of the management of 
the external border by the Hellenic Republic at its land border (Orestiada, Fylakio, Kastanies, 
Nea Vyssa) and sea border (Chios and Samos Islands) with Turkey. 

On 2 February 2016 the Commission adopted an implementing decision establishing a report 
of the evaluation of the Hellenic Republic on the implementation of the Schengen acquis in 
the  field  of  the  management  of  the  external  border3  concluding  that  there  are  serious 
deficiencies  in  the  carrying  out  of  external  border  control  that  must  be  overcome  and  dealt 
with  by  the  Hellenic  authorities.  These  serious  deficiencies  represent,  as  far  as  the  carrying 
out  of  external  border  control  is  concerned,  a  situation  where  the  obligations  referred  to  in 
Article 16(1) and (4) of Regulation (EU) No 1053/2013 have not been met. 

On 12 February 2016 the Council adopted in accordance with Article 15 of Regulation (EU) 
1053/2013  recommendations  on  addressing  the  serious  deficiencies  identified  during  the 
evaluation and indicated the priorities  for implementing  them.  Appropriate measures  should 
be  taken  by  the  Hellenic  authorities  to  ensure  that  at  all  external  borders  of  the  Hellenic 
Republic, external border control is carried out and brought in line with the Schengen Acquis 
in order not to jeopardize the functioning of the Schengen area. 

On  24  February  2016  the  Commission  adopted  in  accordance  with  Article  19b  of  Council 
Regulation (EC) No 562/2006 of 15 March 2006 establishing a Community Code on the rules 
governing the movement of persons across borders (Schengen Borders Code in force at that 
time)4 recommendations on specific measures to be taken by the Hellenic Republic following 

1 

2 

3 
4 

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring 
mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive 
Committee  of  16  September  1998  setting  up  a  Standing  Committee  on  the  evaluation  and 
implementation of Schengen (OJ L 295, 6.11.2013, p. 27). 
Commission  Implementing  Decision  C(2014)  8377  of  14  November  2014  establishing  the  annual 
evaluation programme of unannounced on-site visits for 2015 in accordance with Article 6 of Council 
Regulation  (EU)  No  1053/2013  of  7  October  2013  establishing  an  evaluation  and  monitoring 
mechanism to verify the application of the Schengen acquis. 
C(2016) 450 of 2 February 2016. 
OJ L 105, 13.4.2006, p. 1. 

EN 

2 

   EN 

 
                                                 
the evaluation report of 2 February 2016 to ensure compliance with the recommendations of 
the Council of 12 February 2016.  

On  12  March  2016  the  Hellenic  Republic  notified  in  accordance  with  Article  16(1)  of 
Regulation  (EU)  1053/2016  its  Action  Plan  to  remedy  the  deficiencies  identified  in  the 
evaluation report and subject to the Council Recommendations. The Commission presented on 
12 April 2016 in accordance with Article 16(2) of Regulation (EU) 1053/2016 its assessment 
of  the  adequacy  of  the  Action  Plan  to  the  Council.  The  Commission  concluded  that 
'significant progress has been made by Greece. However, further improvements are needed to 
the Action Plan  presented by the Greek  authorities in order  to  comprehensively  address the 
deficiencies identified in the November 2015 evaluation. In particular, for many actions, more 
clarity  is  needed  in  terms  of  timing,  responsibility  and  financial  planning.  Moreover,  some 
actions cannot yet be considered adequately addressed or completed.'5 

Current temporary internal border control 

The  record  number  of  migrants  arriving  in  the  European  Union  since  2015  and  the 
deficiencies  at  parts  of  the  Greek  external  border  identified  during  the  November  2015 
evaluation  have  resulted  in  important  secondary  movements,  prompting  several  Member 
States to temporarily reintroduce internal border control at all or parts of their internal borders 
on  grounds  of  a  serious  threat  to  public  policy  or  internal  security  resulting  from  the 
uncontrolled influx of persons not properly documented and/or registered upon their arrival in 
the first EU Member State.  

Currently,  five  Schengen  Member  States  have  notified  the  Commission  that  they  carry  out 
temporary  internal  border  control  at  their  borders  in  response  to  a  serious  threat  to  public 
policy  or  internal  security  that  was  caused  by  secondary  movements  of  irregular  migrants 
triggered by serious deficiencies in external border controls. All of these Member States have 
prolonged  several  times  these  controls,  in  line with  the  relevant  provisions  of  the Schengen 
Borders Code. According to the latest notifications: 

 

 

 

Germany  notified  controls  as  from  13  September  2015  till  13  May  2016  at  all  its 
internal  borders,  with  a  special  focus  at  the  German-Austrian  land  border.  The 
decision is motivated by the serious threat to the internal security and public policy 
due  to  the  massive  influx  of  irregular  migrants  who  have  not  been  properly 
identified,  fingerprinted  and  registered  in  any  other  EU  Member  State  upon  their 
arrival in the EU.  

Austria notified controls as from 16 September 2015 till 16 May 2016 at all internal 
borders, with a special focus on the Austrian-Slovenian and Austrian-Hungarian land 
borders.  The  border  controls  are  motivated  by  the  massive  influx  of  third  country 
nationals  crossing  the  Austrian  borders  and  putting  extreme  pressure  on  the 
emergency services and public infrastructure.  

Sweden  notified  controls  as  from  12  November  2015  till  8  May  2016  at  all  its 
internal borders, with a special focus on selected harbours in the Police Region South 
and  West  and  the  Öresund  Bridge.  The  decision  to  reintroduce  temporary  border 
control  was  first  motivated  by  the  unprecedented  migratory  flows  of  mixed  nature 
posing  challenges  for  the  functioning  of  the  Swedish  society.  It  continues  to  be 
motivated  by  the  high  number  of  asylum  seekers  and  the  consequences  of  the 
unprecedented high number of asylum applications in 2015. 

5 

COM(2016) 220 final of 12 April 2016. 

EN 

3 

   EN 

 
                                                 
 

 

Norway  notified  controls  as  from  26  November  2015  till  12  May  2016.  The 
reintroduced controls concern all the internal borders but a special focus is given to 
all  ports  with  ferry  connections  to  Sweden,  Germany  and  Denmark.  Both  the 
decision  on reintroduction and the subsequent  prolongations were  motivated  by  the 
consequences of the unpredictable migratory pressure and the ensuing challenges for 
the functioning of the Norwegian society.   

Denmark notified controls as from 4 January 2016 till 2 June 2016, at all its internal 
borders,  with  a  special  focus  on  ferries  arriving  from  Germany  and  on  the  Danish-
German  land  border.  While  the  original  decision  was  motivated  by  the  unexpected 
migratory  flows  and  the  border  measures  adopted  in  the  neighbouring  countries, 
which  could  potentially  lead  to  a  very  large  number  of  illegal  migrants  being 
stranded  in  the  Copenhagen  area,  the  last  notification  emphasised  the  uncertainties 
regarding the vast number of refugees and migrants already in the EU. 

For  Germany  and  Austria,  the  Commission  specifically  acknowledged  in  its  Opinion  of  23 
October  20156  the  necessity  and  proportionality  of  the  measures  taken.  Based  on  the 
information  provided  by  the  German  and  Austrian  authorities,  the  Commission  came  to  the 
conclusion  that  these  reintroductions  of  controls  at  internal  borders  provide  an  adequate 
response to the identified threat to internal security and public policy in compliance with the 
Schengen Borders Code. This assessment has been confirmed by the subsequent information 
and data received from these and other Member States, the EU agencies and bodies involved 
and the Commission's teams present in the hotspots on the ground. 

The  Commission  has  been  monitoring  the  situation  in  all  the  Member  States  concerned  to 
assess if the reintroduced internal controls have been kept to the minimum necessary. These 
controls  have  not  created  major  disruptions  or  limited  unnecessarily  the  free  movement  of 
persons  and  goods  within  the  Schengen  area.  The  information  available  also  shows  that  the 
measures  put  in  place  efficiently  contributed  to  restoring  order  in  the  flows  of  persons 
crossing specific internal borders and as such curbed the secondary movements. 

Towards a coordinated approach to internal border control 
In its Communication 'Back to Schengen – a Roadmap'7, the Commission referred to the need, 
if  the  migratory  pressures  and  the  serious  deficiencies  in  external  border  control  were  to 
persist  beyond  12  May  2016,  to  present  a  proposal  to  the  Council  under  Article  29  of 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on 
a  Union  Code  on  the  rules  governing  the  movement  of  persons  across  the  border8  (the 
Schengen  Borders  Code  currently  in  force)  recommending  a  coherent  Union  approach  to 
internal  border  controls  until  the  structural  deficiencies  in  external  border  control  are 
mitigated or remedied. The Communication sets out the steps that need to be taken in order to 
return to a normally functioning Schengen area at the latest by the end of 2016.  

Article  29  of  the  Schengen  Borders  Code  sets  out  a  specific  procedure  for  exceptional 
circumstances where the overall functioning of the area without internal border control is put 
at risk as a result of persistent  serious deficiencies relating to  external border control  which 
have  been  identified  in  an  evaluation  report  regarding  a  Member  State,  insofar  as  those 
circumstances  constitute  a  serious  threat  to  public  policy  or  internal  security  within  the 
Schengen  area  or  parts  thereof,  and  where  all  other  measures  were  ineffective  in  mitigating 
the serious threat identified. In such situations, the Council may, as  a last resort  measure to 

6 
7 
8 

C(2015) 7100 final. 
COM(2016) 120 final. 
OJ L 77, 23.3.2016, p.1. 

EN 

4 

   EN 

 
                                                 
protect  the  common  interests  of  the  Schengen  area,  recommend  that  one  or  more  Member 
States  reintroduce  border  control  at  all  or  parts  of  their  borders  for  a  period  of  up  to  six 
months (with possible prolongations for a maximum total period of up to two years). 

Evaluation of the situation by 12 May 2016 

In  accordance  with  Article  21(3)  of  the  Schengen  Borders  Code,  where  the  Member  State 
concerned must report on the implementation of the relevant action plan within three months 
in accordance with Article 16(4) of Regulation (EU) No 1053/2013, and where, following that 
three-month  period,  the  Commission  finds  that  the  situation  persists,  it  may  trigger  the 
procedure provided for in Article 29 of the Schengen Borders Code. 

In  light  of  the  fact  that  the  maximum  period  allowed  by  the  relevant  provisions  of  the 
Schengen  Borders  Code  for  unilateral  re-introduction  of  internal  border  controls  by  certain 
Member  States  will  expire  mid-May  (see  above),  and  that  Greece  has  already  provided  the 
report foreseen in Article 16 (4) of Regulation (EU) No 1053/2013,  the Commission should 
not wait for the expiration of the three months period before making its assessment whether 
on  12  May  2016  the  situation  will  persist,  especially  as  the  Commission  has  considerable 
information at its disposal as regards the situation of external border control in the Hellenic 
Republic.  

This  assessment  shall  be  based,  among  others,  on  detailed  information  provided  by  the 
Member  State(s)  concerned  or  the  EU  Agencies  involved,  or  obtained  during  on-site  visits. 
Among the information available to the Commission, there is the information provided by the 
Commission's  teams  present  in  the  hotspots  in  the  Hellenic  Republic,  the  information 
gathered during an announced on-site Schengen evaluation visit to the Hellenic Republic from 
10  to  16  April  2016  to  verify  the  application  of  the  Schengen  acquis  in  the  field  of 
management of the external border, in accordance with the annual evaluation programme for 
20169, and the information  gathered by the Commission in the preparation of recent reports 
related to the migratory situation in the Hellenic Republic.10 

In  its  Communication  on  the  "Assessment  of  Greece's  Action  Plan  to  remedy  the  serious 
deficiencies identified in the 2015 evaluation on the application of the Schengen acquis in the 
field  of  management  of  the  external  border",  the  Commission  has  requested  the  Hellenic 
Republic to provide additional elements and clarifications by 26 April 2016, as it considered 
that "further improvements are needed to the Action Plan presented by the Greek authorities 
in  order  to  comprehensively    address  the  deficiencies  identified  in  the  November  2015 
evaluation.  In  particular,  for  many  actions,  more  clarity  is  needed  in  terms  of  timing, 
responsibility  and  financial  planning.  Moreover,  some  actions  cannot  yet  be  considered 
adequately  addressed  or  completed.  Finally,  for  some  actions  substantive  additional 
information  or  clarification  is  needed."  Moreover,  in  accordance  with  Article  16(4)  of  the 
SEM Regulation, the Hellenic Republic has to report on the implementation of its Action Plan 
within the same three month period. 

On  26  April  2016,  the  Hellenic  Republic  provided  the  Commission  with  the  requested 
additional  elements  and  clarifications  on  its  Action  Plan.  On  29  April  2016,  the  Hellenic 
Republic transmitted to the Commission the Report on the implementation of the Action Plan. 

9 
10 

C(2015) 8537 of 9.12.2015. 
First report on relocation on resettlement of 16.3.2016 (COM(2016) 165 final), Progress report on the 
implementation of the hotspot approach in Greece of 4.3.2016 (COM(2016) 141 final), Second report 
on relocation and resettlement of 12.4.2016 (COM(2016) 222 final), First report on the progress made 
in the implementation of the EU-Turkey Statement of 20.4.2016 (COM(2016) 231 final). 

EN 

5 

   EN 

 
                                                 
Significant technical and financial support has been provided to the Hellenic Republic by both 
the Commission and the EU Member States. The Commission has awarded EUR 181 million 
of emergency assistance since the beginning of 2015. The emergency funding comes on top of 
the  EUR  509  million  already  allocated  to  the  Hellenic  Republic  under  the  national 
programmes  on  migration  and  border  management  for  2014-2020.  Frontex  has  been 
facilitating  the  deployment  of  technical  equipment  and  human  resources  of  other  Member 
States, to ensure effective controls and protection of the external land and sea borders of the 
Hellenic  Republic,  notably through  Joint Operations  POSEIDON  SEA  and  RAPID 
INTERVENTION  POSEIDON  carried  out  at  the  sea  borders  and  it  has  been  coordinating 
joint  operations  Flexible  Operational  Activities  and  Focal  Points  Land  at  the  external  land 
borders.   Frontex  has  also  co-financed  the  internal  re-deployment  of  equipment  and  border 
guard  officers  by  the  Hellenic  Republic. Finally,  the  Commission,  EASO,  Frontex,  Europol 
and  Eurojust  work  on  the  ground  with  the  Greek  authorities  to  help  them  fulfil  their 
obligations under EU law and swiftly identify, register and fingerprint incoming migrants in 
the hotspots. 

The Hellenic Republic has made significant progress in addressing many of the deficiencies in 
its external border management identified during the November 2015 evaluation. Moreover, 
the initial implementation of the EU-Turkey Statement of 18 March 201611, together with the 
on-going  operations  by  Frontex  and  NATO,  have  led  to  a  sharp  decrease  in  the  number  of 
irregular migrants and asylum seekers crossing from Turkey into the Hellenic Republic. This 
substantial  reduction  in  the  flow  of  irregular  migrants  and  asylum  seekers  to  the  Hellenic 
Republic, together with the support provided by EU Agencies and other Member States in the 
hotspots, has enabled the Hellenic Republic to significantly improve the registration of newly 
arriving irregular migrants and asylum seekers.  The sustainability of the substantial reduction 
of the migratory flow needs to be confirmed. Also the progress achieved by Greece in the area 
of return will depend on the sustainability of the substantial reduction of the migratory flow, 
as  well  as  on  the  setting  up  and  maintaining  of  structures  and  the  provision  of  adequate 
resources that will enable an effective return of irregular migrants. 

Having analysed the information provided by the Hellenic Republic, the findings made by the 
Commission  experts  during  the  on-site  Schengen  evaluation  visit  in  April  2016  (without 
prejudging the evaluation report to be drawn up in accordance with Article 14 of Regulation 
(EU)  No  1053/2013)  and  the  information  available  via  the  presence  of  the  Commission 
services in the hotspots, the following assessment is made: 

 

 

With the support of the respective EU agencies (Frontex and EASO), both in terms 
of equipment and human resources, the registration process of irregular migrants on 
the Greek islands visited (Lesvos, Samos, Kos and Symi) and at the land border with 
Turkey  visited  (registration  centre  Fylakio)  has  improved  significantly.  Arriving 
irregular  migrants  are  fully  identified,  fingerprinted  and  registered  into  Eurodac.  A 
security check of the migrants and their travel documents is performed. As far as the 
accommodation  of  these  migrants  is  concerned,  the  situation  has  changed  after  20 
March  2016  with  the  start  of  the  application  of  the  EU-Turkey  Statement  of  18 
March 2016. 

The national border management system of the Hellenic Republic presently does not 
yet  have  the  required  operational  and  administrative  capacities  to  manage  external 
borders according to the standards of the Schengen Borders Code, although work is 
in progress to establish these capacities. In particular, some core functions, e.g. risk 
analysis,  are  presently  not  implemented  in  full  and  the  approach  to  border 

11 

SN 38/16 of 18.03.2016. 

EN 

6 

   EN 

 
                                                 
 

 

management  is  fragmented.  Not  all  the  national  capacities  suitable  for  border 
surveillance (Army, Navy) are fully used by the Hellenic Republic. 

For the surveillance of the sea border with Turkey, Greece is relying significantly on 
the  support  of  the  EU,  Frontex  and  other  Member  States.  However,  without  this 
support,  an  adequate  level  of  sea  border  surveillance  could  not  be  maintained  by 
Greece.  For  their  situational  awareness  the  Hellenic  Coast  Guard  (the  border 
authority  responsible  for  sea  border  surveillance)  is  depending  on  information 
forwarded to them by the Hellenic Navy and Hellenic Army and on their own limited 
number  of  patrol  vessels  and  observation  posts.  Moreover,  the  reaction  capacity  is 
considered not to be sufficient taking into account the vicinity of Turkey and the risk 
of irregular migration despite the implementation of the EU-Turkey Statement; there 
is no reliable near to real-time situational picture at regional and local level and there 
is  no  secure  mobile  communication  network  available  to  be  used  by  the  relevant 
border control authorities.   

For  the  surveillance  of  the  land  border  with  Turkey  and  Albania,  the  number  of 
personnel,  level  of  situational  awareness  and  reaction  capability,  as  well  as  the 
equipment  is  at  a  sufficient  level,  with  some  points  for  improvement.  At  the  land 
border with the former Yugoslav Republic of Macedonia (Police Directorate Kilkis, 
responsible for surveillance of the border over a stretch of 87 km) border surveillance 
is currently not fully compliant with the Schengen Borders Code. In addition there is 
no  automated  video  surveillance  system  in  place  at  the  border,  the  situational 
awareness was found to be very limited and there was no overall operational picture 
available.  There  is  no  systematic  registration  of  migrants  found  in  this  region  who 
had not been registered upon entry in the Hellenic Republic. 

Consequently,  despite  the  significant  efforts  made  by  the  Hellenic  Republic  and  the 
significant  progress  achieved,  not  all  of  the  serious  deficiencies  in  its  external  border 
management  identified  during  the  November  2015  evaluation  will  be  adequately  and 
comprehensively addressed within the three months' time limit laid down in Article 21(3) of 
the  Schengen  Borders  Code.  Some  of  the  serious  deficiencies  in  external  border  control 
persist, and they put at risk the overall functioning of the area without internal border control.    

An adequate functioning of the border surveillance, systemic identification and registration of 
irregular  migrants,  reception  and  return  procedures  remain  indispensable  for  a  correct 
functioning of the Schengen area. In addition, a considerable number of unregistered migrants 
who  may  seek  to  move  irregularly  to  other  Member  States,  remain  present  in  the  Hellenic 
Republic. 

Consequently,  some  of  the  serious  deficiencies  in  external  border  controls  that  triggered 
secondary  movements  of  irregular  migrants  and  prompted  several  Member  States  to 
temporarily reintroduce internal border controls for reasons related to public policy or internal 
security  persist,  putting  at  risk  the  overall  functioning  of  the  area  without  internal  border 
control.  This  persistent  risk  of  secondary  movements  requires  a  coherent,  coordinated  and 
sustainable approach of temporary internal border control. 

As  all  other  measures  have  been  ineffective  in  mitigating  the  serious  threat  identified,  it 
follows  that  the  conditions  for  applying  Article  29  of  the  Schengen  Borders  Code  as  a  last 
resort are fulfilled in the present case. 

Scope of the proposed recommendation 

Article  29  of  the  Schengen  Borders  Code  is  a  safeguard  for  the  overall  functioning  of  the 
Schengen area. It does not aim at sanctioning or isolating a Member State, nor does it aim at 

EN 

7 

   EN 

 
excluding  any  Member  State  from  the  Schengen  area;  it  rather  aims  at  mitigating  serious 
threats  to  public  policy  or  internal  security  within  the  Schengen  area.  To  date  irregular 
migrants do not travel in significant numbers by air or sea from the Hellenic Republic to other 
Member States. Re-introducing controls on those passengers would therefore not mitigate the 
threats  and  would  thus  be  disproportionate. Therefore,  the  proposal  should  not  consider 
introducing internal border controls by all Member States on passengers of flights and ferries 
coming  from/travelling  to  the  Hellenic  Republic.  Article  29  is  by  nature  a  measure  limited 
both in scope and duration to what is strictly necessary to address the threat putting at risk the 
overall functioning of the area without internal border controls. 

Concerning  the  scope  of  temporary  internal  border  control  recommended  under  Article  29, 
based  on  the  information  currently  available,  the  Member  States  currently  carrying  out 
internal border control should be permitted to continue doing so as those controls have proved 
able  to  efficiently  address  the  serious  threat  to  public  policy  and  internal  security  that  was 
caused  by  secondary  movements  of  irregular  migrants  coming  from  the  Hellenic  Republic, 
namely  Germany,  Denmark,  Austria  and  Sweden  and  the  associated  country  Norway.  The 
internal borders currently affected by the checks correspond indeed to the identified migratory 
routes and threats, with focus on specific land border sections or specific ports.  

The  Member  States  that  decide  to  carry  out  internal  border  control  in  accordance  with  this 
recommendation  should  notify  the  other  Member  States,  the  European  Parliament  and  the 
Commission accordingly. 

Internal  border  control  should  be  carried  out  only  to  the  necessary  extent,  be  limited  in  its 
intensity to the absolute minimum necessary and impede as little as possible the crossing of 
the respective internal borders for the general public. For this purpose, only targeted controls 
should be carried out.  Furthermore, the necessity of these controls, together with the border 
sections  affected,  should  be  re-evaluated  regularly  in  cooperation  with  the  Member  States 
concerned in view of the changing situation.  

Border control should only take place during the time necessary to remedy to all the serious 
deficiencies in the management of the Union's external border. Several legislative initiatives 
and  actions  undertaken  by  the  Union  in  order  to  reinforce  its  external  border  management 
(European Coast and Border Guard, return to a full application of EU asylum law provisions 
by  the  Hellenic  Republic,  stepping  up  of  the  implementation  of  the  emergency  relocation 
scheme, the EU-Turkey Statement) should also be in place and fully operational without delay 
and thus further contribute to a substantial reduction in the secondary movements of irregular 
migrants. 

The Commission will monitor the application of this recommendation and the situation on the 
ground and any time, where necessary, propose adaptations to this recommendation to reflect 
changes in the migratory flow. 

The  Commission  intends  to  report  to  the  European  Parliament  and  the  Council  after  four 
months  as  from  the  date  of  adoption  of  this  recommendation  on  its  application  and  on  that 
occasion, the Commission may propose amendments in light of the experience acquired and 
the circumstances. 

• 

Consistency with existing policy provisions in the policy area 

This recommendation serves to implement the existing provisions in the policy area. 

• 

Consistency with other Union policies 

This  recommendation  has  links  with  the  Union's  internal  market  and  migration  and  asylum 
policy. 

EN 

8 

   EN 

 
2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 29 of Regulation (EU) No 2016/399 of the European Parliament and of the Council of 
9  March  2016  on  a  Union  Code  on  the  rules  governing  the  movement  of  persons  across 
borders.  

• 

Subsidiarity (for non-exclusive competence)  

Article  29  of  Regulation  (EU)  No  2016/399  specifies  that  the  Council  shall  adopt  a 
recommendation for temporary internal border control on the basis of a Commission proposal.  

Action  at  Union  level  is  required  where  the  overall  functioning  of  the  area  without  internal 
border controls is put at risk.  

• 

Proportionality 

The present proposal does not go beyond what is necessary to achieve the objective pursued. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

Collection and use of expertise 

Impact assessment 

Regulatory fitness and simplification 

3. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

Fundamental rights 

The  protection  of  fundamental  rights  was  taken  into  account  during  the  drafting  of  the 
proposal.  

BUDGETARY IMPLICATIONS 

OTHER ELEMENTS 

4. 

n.a. 

5. 

n.a. 

EN 

9 

   EN 

 
2016/140 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

setting out a recommendation for temporary internal border control in exceptional 
circumstances putting the overall functioning of the Schengen area at risk 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Regulation  (EU)  No  2016/399  of  the  European  Parliament  and  of  the 
Council of 9 March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code)12 and in particular Article 29 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

12 
13 

14 

15 

The  EU  is  facing  an  unprecedented  migratory  and  refugee  crisis  following  a  sharp 
increase  of  mixed  migratory  flows  since  2015.  This  has  led  to  severe  difficulties  in 
ensuring efficient external border control in accordance with the Schengen acquis and 
in  the reception and processing of migrants arriving.  Wider  structural deficiencies in 
the  way  the  Union's  external  borders  are  protected  have  also  become  evident  in  this 
crisis. 

The Hellenic Republic is, mainly due to its geographical situation, particularly affected 
by  these  developments  and  has  faced  a  dramatic  increase  in  the  number  of  migrants 
arriving on the Aegean islands.  
In  accordance  with  Council  Regulation  (EU)  No  1053/201313  and  the  annual 
evaluation programme for 201514, an unannounced on-site visit was carried out from 
10 to 13 November 2015 to evaluate the implementation of the Schengen acquis in the 
field  of  the  management  of  the  external  border  by  the  Hellenic  Republic  at  its  land 
border  (Orestiada,  Fylakio,  Kastanies,  Nea  Vyssa)  and  sea border  (Chios  and  Samos 
Islands) with Turkey. 

On 2 February 2016 the Commission adopted an implementing decision establishing a 
report  of  the  evaluation  of  the  Hellenic  Republic  on  the  implementation  of  the 
Schengen  acquis  in  the  field  of  the  management  of  the  external  border15  concluding 
that  there  are  serious  deficiencies  in  the  carrying  out  of  external  border  control  that 
must be overcome and dealt with by the Hellenic authorities.  

OJ L 77, 23.03.2016, p. 1. 
Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring 
mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive 
Committee  of  16  September  1998  setting  up  a  Standing  Committee  on  the  evaluation  and 
implementation of Schengen (OJ L 295, 6.11.2013, p. 27). 
Commission  Implementing  Decision  C(2014)  8377  of  14  November  2014  establishing  the  annual 
evaluation programme of unannounced on-site visits for 2015 in accordance with Article 6 of Council 
Regulation  (EU)  No  1053/2013  of  7  October  2013  establishing  an  evaluation  and  monitoring 
mechanism to verify the application of the Schengen acquis. 
C(2016) 450 of 2 February 2016. 

EN 

10 

   EN 

 
                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

On 12 February 2016 the Council adopted recommendations on addressing the serious 
deficiencies  identified  during  the  evaluation  and  indicated  the  priorities  for 
implementing them. Appropriate measures should be taken by the Hellenic authorities 
to  ensure  that  at  all  its  external  borders,  external  border  control  is  carried  out  and 
brought in line with the Schengen Acquis in order not to jeopardize the functioning of 
the Schengen area. 

On 24 February 2016 the Commission adopted recommendations on specific measures 
to  be  taken  by  the  Hellenic  Republic  following  the  evaluation  report  of  2  February 
2016 to ensure compliance with the recommendations  of the Council of 12 February 
2016.  

in 

identified 

the  evaluation  report  and  subject 

On  12  March  2016  the  Hellenic  Republic  notified  its  Action  Plan  to  remedy  the 
the  Council 
deficiencies 
Recommendations. The Commission presented on 12 April 2016 its assessment of the 
adequacy  of  the  Action  Plan  to  the  Council.  While  the  Commission  concluded  that 
significant  progress  has  been  made  by  Greece,  further  improvements  to  the  Action 
Plan are needed in order to adequately and comprehensively address the deficiencies 
identified in the Evaluation Report. It requested Greece to provide additional elements 
and clarifications on its Action Plan by 26 April. 

to 

On 26 April 2016 the Hellenic Republic provided the Commission with the requested 
additional  elements  and  clarifications  on  its  Action  Plan.  On  29  April  2016,  the 
Hellenic Republic transmitted to the Commission the Report on the implementation of 
the Action Plan in accordance with Article 16(4) of Regulation (EU) No 1053/2013.  

Between  10  and  16  April  2016,  in  accordance  with  Regulation  (EU)  1053/2013  and 
the annual evaluation programme for 2016, an announced on-site visit was carried out 
in the Hellenic Republic16.  

(10)  The  record  number  of  migrants  arriving  in  the  European  Union  since  2015  and  the 
deficiencies  at  parts  of  the  Union's  external  border  identified  during  the  November 
2015  evaluation  have  resulted  in  important  secondary  movements,  causing  a  serious 
threat to public policy or internal security in several Member States.  

(11)  Currently  five  Schengen  States  (Austria,  Germany,  Denmark,  Sweden  and  Norway) 
carry  out  border  controls  at  internal  borders  in  response  to  a  serious  threat  to  public 
policy  or  internal  security  that  was  caused  by  secondary  movements  of  irregular 
migrants  triggered  by  serious  deficiencies  in  external  border  controls.  These 
reintroductions  of  controls  at  internal  borders  provide  an  adequate  response  to  the 
identified  threat  to  the  internal  security  and  public  policy  in  compliance  with  the 
Schengen  Borders  Code,  and  these  measures  are  necessary  and  are  considered 
proportionate.  On  23  October  2015,  the  Commission  issued  an  Opinion  on  the 
necessity  and  proportionality  of  the  controls  at  internal  borders  reintroduced  by 
Germany  and  Austria17  concluding  that  the  reintroduction  of  controls,  as  well  as  the 
prolongations thereof, was in compliance with the Schengen Borders Code.      
In its Communication 'Back to Schengen – a Roadmap'18, the Commission referred to 
the  need,  if  the  migratory  pressures  and  the  serious  deficiencies  in  external  border 
control were to persist beyond 12 May 2016, to present a proposal under Article 29(2) 
of  the  Schengen  Borders  Code  to  the  Council  recommending  a  coherent  Union 

(12) 

16 
17 
18 

C(2015)8537 of 9 December 2015. 
C(2015)7100 of 23 October 2015. 
C(2016) 120 final. 

EN 

11 

   EN 

 
                                                 
approach to internal border controls until the structural deficiencies in external border 
control are mitigated or remedied. The Communication sets out the steps that need to 
be taken in order to return to a normally functioning Schengen area at the latest by the 
end of 2016.  

(13)  The  Hellenic  Republic  has  made  significant  progress  in  addressing  many  of  the 
deficiencies  in  its  external  border management  identified during the  November  2015 
evaluation.  Moreover,  the  initial  implementation  of  the  EU-Turkey  Statement  of  18 
March 201619, together with the on-going operations by Frontex and NATO, have led 
to  a  sharp  decrease in  the  number  of  irregular migrants  and  asylum  seekers  crossing 
from  Turkey  into  the  Hellenic  Republic.  This  substantial  reduction  in  the  flow  of 
irregular  migrants  and  asylum  seekers  to  the  Hellenic  Republic,  together  with  the 
support  provided  by  EU  Agencies  and  other  Member  States  in  the  hotspots,  has 
enabled  the  Hellenic  Republic  to  significantly  improve  the  registration  of  newly 
arriving  irregular  migrants  and  asylum  seekers.  The  sustainability  of  the  substantial 
reduction of the migratory flow needs to be confirmed. 

(14)  Despite this significant progress, not all of the serious deficiencies identified could be 
adequately  and  comprehensively  addressed  within  the  three  months'  time  limit  laid 
down in Article 21(3) of Regulation (EU) 2016/399. Some of the serious deficiencies 
in  external  border  control  persist,  and  they  put  at  risk  the  overall  functioning  of  the 
area without internal border control. In particular, the Hellenic Republic has not been 
able to remedy the structural deficiencies in external border control related its overall 
border management system, border surveillance and situational awareness. Moreover, 
a considerable number of persons who stay irregularly on the territory of the Hellenic 
Republic have not been registered and may seek to move irregularly to other Member 
States.  This  risk  of  secondary  movements  is  particularly  high  for  those  irregular 
migrants who are not accommodated in adequate reception facilities. Finally, while the 
Council recommended that the Hellenic Republic should take appropriate measures to 
ensure that at all its external borders, external border control is carried out and brought 
in  line  with  the  Schengen  Acquis,  border  surveillance  at  the  border  with  the  former 
Yugoslav Republic of Macedonia  is currently not fully compliant with the Schengen 
Borders  Code.  The  Hellenic  Republic  did  not  implement  the  Commission's 
Recommendation  to  take  further  measures  at  the  border  with  the  former  Yugoslav 
Republic  of  Macedonia  to  ensure  that  third-country  nationals  can  only  leave  the 
territory of the Hellenic Republic at the designated border crossing points. This adds to 
the risk of secondary movements of migrants to other Member States.    

(15)  Consequently,  some  of  the  serious  deficiencies  in  external  border  controls  that 
triggered  secondary  movements  of  irregular  migrants  and  prompted  several  Member 
States to temporarily reintroduce internal border controls for reasons related to public 
policy  or  internal  security  persist,  putting  at  risk  the  overall  functioning  of  the  area 
without internal border control. This persistent risk of secondary movements requires a 
coherent, coordinated and sustainable approach of temporary internal border control. 

(16)  As all other measures have been ineffective in mitigating the serious threat identified, 
it follows that the conditions for applying Article 29 of the Schengen Borders Code as 
a last resort are fulfilled. 

(17)  Therefore, a recommendation to carry out internal border control under Article 29 of 
the Schengen Borders Code should be addressed, based on the information available, 
to  those  Member  States  that  are  currently  carrying  out  internal  border  control  in 

19 

SN 38/16 of 18.03.2016. 

EN 

12 

   EN 

 
                                                 
response  to  a  serious  threat  to  public  policy  or  internal  security  that  was  caused  by 
secondary movements of irregular migrants, namely Germany, Denmark, Austria and 
Sweden and the associated country Norway. These Member States should be permitted 
to  carry  out  such  controls  as  these  controls  adequately  address  the  serious  threat  to 
public  policy  and  internal  security  related  to  the  secondary  movements  of  irregular 
migrants.  The  internal  borders  currently  affected  by  the  checks  correspond  to  the 
identified migratory routes and threats, with focus on specific land border sections or 
specific ports.  

(18)  The  Member  States  that  decide  to  carry  out  internal  border  control  following  the 
present  Recommendation  should  notify  the  other  Member  States,  the  European 
Parliament and the Commission accordingly. 

(19)  The  controls  under  Article  29  of  the  Schengen  Borders  Code  should  be  carried  out 
only  to  the  necessary  extent,  limited  in  their  intensity  of  the  controls  to  the  absolute 
minimum  necessary  and  impeding  as  less  as  possible  the  crossing  of  the  respective 
internal borders for the general public. For this purpose, only targeted controls should 
be  carried  out.  The  necessity  of  these  controls,  together  with  the  border  sections 
affected,  should  be  re-evaluated  regularly  in  cooperation  with  the  Member  States 
concerned.   

(20)  Border  control  should  take  place  only  as  long  as  required  to  address  the  threat  to 
public  policy  and  internal  security.  Several  legislative  initiatives  and  actions 
undertaken  by  the  Union  in  order  to  reinforce  its  external  border  management 
(European  Coast  and  Border  Guard,  return  to  a  full  application  of  EU  asylum  law 
provisions  by  the  Hellenic  Republic,  stepping  up  of  the  implementation  of  the 
emergency relocation scheme, the EU-Turkey Statement) should also be in place and 
fully operational without delay and thus further contribute to a substantial reduction in 
the secondary movements of irregular migrants, 

(21)  The  Council  takes  note  that  the  Commission  will  monitor  the  application  of  this 
recommendation  and,  where  necessary,  propose  adaptations  to  reflect  changes  in  the 
migratory flow. 

(22)  The Commission has also announced that it will report to the European Parliament and 
the Council after four months as from the date of the adoption of this recommendation 
on  its  application  and  on  that  occasion  may  propose  amendments  to  this 
recommendation in light of the experience acquired and the circumstances, 

HEREBY RECOMMENDS:  

1.  Austria,  Germany,  Denmark,    Sweden  and  Norway  to  maintain  proportionate  temporary 
border controls for a maximum period of six months, starting from the day of the adoption of 
this Implementing Decision, at the following internal borders 

- Austria at the Austrian-Hungarian land border and Austrian-Slovenian land border; 

- Germany at the German-Austrian land border; 

- Denmark in the Danish ports with ferry connections to Germany and at the Danish-German 
land border;  

- Sweden in the Swedish harbours in the Police Region South and West and at the Öresund 
bridge; 

EN 

13 

   EN 

 
 
- Norway in the Norwegian ports with ferry connections to Denmark, Germany and Sweden. 

2.  The  Member  States  concerned  should  notify  the  other  Member  States,  the  European 
Parliament and the Commission accordingly. 

3.  Border  control  should  be  targeted  and  limited  in  scope,  frequency,  location  and  time,  to 
what is strictly necessary to respond to the serious threat and to safeguard public policy and 
internal  security.  The  Member  State  that  carries  out  internal  border  control  pursuant  to  the 
present Implementing Decision should regularly review the necessity, frequency, location and 
time  of  controls,  adjust  the  controls  to  the  level  of  the  threat  addressed,  phasing  them  out 
wherever appropriate, and report to the Commission every two months. 

Done at Brussels, 

For the Council 
The President 

EN 

14 

   EN