Proposal for a COUNCIL IMPLEMENTING DECISION setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk
Date: 2016-10-25
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Austria, Denmark, Germany, Norway, Schengen Agreement, Sweden, border control, illegal migration, internal border of the EU, right of asylum

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   EUROPEAN COMMISSION  Strasbourg, 25.10.2016  COM(2016) 711 final 2016/0347 (NLE)   Proposal for a COUNCIL IMPLEMENTING DECISION setting out a Recommendation for prolonging 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 

On 12 May 2016, the Council adopted, on a proposal by the Commission, an Implementing 
Decision setting out a Recommendation for temporary internal border control in exceptional 
circumstances putting the overall functioning of the Schengen area at risk. It was the first time 
that  the  safeguard  procedure  of  Article  29  of  the  Schengen  Borders  Code  was  used.  The 
combination  of  serious  deficiencies  in  the  management  of  the  external  border  by  Greece  at 
that time and the important number of unregistered migrants present in Greece who may have 
sought  to  move  irregularly  to  other  Member  States  created  exceptional  circumstances 
constituting a serious threat to public policy and internal security and endangering the overall 
functioning of the Schengen area.  

This Recommendation was addressed to five Schengen States (Austria, Germany, Denmark, 
Sweden  and  Norway)  and  concerned  a  limited  number  of  internal  border  sections  in  these 
States.  

The Recommendation allowed for the maintenance of targeted and proportionate controls for 
a period of six months, namely until 12 November 2016. 

Under Article 29 of the Schengen Borders Code, this period can be prolonged in accordance 
with the conditions and procedure set out in the same Article. 

Current situation 

Following  the  Council  Recommendation  of  12  May,  the  five  Schengen  States  concerned 
notified  the  Commission  that  they  would  carry  out  the  recommended  temporary  internal 
border control. 

In its report of 28 September 2016, which built on information received from the Schengen 
States concerned, as foreseen by the Recommendation, the Commission found that the border 
controls have remained within the limits of the Recommendation: controls were limited to the 
identified  migratory  routes  and  threats,  they  were  targeted  and  limited  in  scope,  frequency, 
location and time, to what was strictly necessary to address the threat identified, and, while a 
certain economic impact could not be excluded, they affected as little as possible the crossing 
of  the  internal  borders  by  the  general  public.  Furthermore,  based  on  the  information  at  its 
disposal  at  that  time,  the  Commission  concluded  that  it  saw  no  need  for  proposing 
amendments to the Recommendation. 

On 18 and 21 October 2016, the Schengen States concerned reported for the second time to 
the  Commission  on  the  implementation  of  the  Council  Recommendation.  The  information 
provided  follows  a  trend  similar  to  the  data  provided  for  the  first  report  (reduction  in  the 
number of persons to whom entry is refused, as well as in the number of asylum applications 
received) and thus shows a progressive stabilisation of the situation. On 20 October the five 
Schengen States wrote to the Commission stressing the need for allowing the continuation of 
the  temporary  border  controls.  Slovenia  wrote  to  the  Commission  as  well  on  6  October  to 

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express concern about the possible continuation of border controls at the Austrian-Slovenian 
border.  

The triggering of Article 29 of the Schengen Borders Code and the adoption of a coordinated 
approach  at EU  level to  temporary  border  controls  were  among  the initiatives  envisaged  by 
the Back to Schengen Roadmap1 and which aimed at creating conditions for lifting all internal 
border controls and returning to a normally functioning Schengen area by the end of 2016. 

Despite the sharp decrease in the number of arrivals of irregular migrants and asylum seekers 
in the European Union notably due to the implementation of the EU-Turkey Statement, there 
is still a significant number of irregular migrants (about 60 000) stranded in Greece who may 
reasonably be expected to seek to move irregularly to other Member States.  

In  addition,  the  total  number  of  asylum  applications  received  by  the  Schengen  States 
concerned by the Recommendation remains a relevant factor, even if it is not comparable with 
the  number  of  applications  received  at  the  same  moment  last  year.  The  large  numbers  of 
arrivals of irregular migrants and asylum seekers in the European Union since autumn 2015 
have posed substantial challenges to all EU Member States which must be taken into account. 
These  challenges  related  to  ensuring  proper  housing  and  access  to  education  and  health 
systems to those who have arrived since last year. Moreover, the processing of the remaining 
backlog  and  further  arrivals  and  requests  for  protection  put  a  continuous  strain  on  the 
functioning of the administrations of these States.  

Furthermore,  other  actions  foreseen  by  the  Back  to  Schengen  Roadmap,  despite  significant 
progress, still need time to be fully implemented and the corresponding results confirmed.  

In this regard, the European Border and Coast Guard has been adopted and entered into force 
within  record  time.  However  the  rapid  reaction  pools  (human  resources  and  technical 
equipment) and the rapid return pools need to be established and operational by, respectively, 
7  December  2016  and  7  January  2017.  The  first  vulnerability  assessments  should  be 
concluded in the first three months of 2017. 

The  implementation  of  EU-Turkey  Statement  continues  to  deliver  results.  Nevertheless  on 
average 107 persons continue arriving daily at the Greek islands. It is important to continue to 
ensure that the Statement functions on a sustained basis. Moreover, there remains an on-going 
need for the cooperation agreed upon in the Statement of the Western Balkans Route Leaders 
meeting, as evidenced by the continuing number of arrivals in Serbia. 

The  exceptional  circumstances  that  constitute  a  serious  threat  to  public  policy  and  internal 
security and put at the risk the functioning of the whole Schengen area thus persist. 

Way forward 

In light of the facts exposed above, it appears that the conditions which the Roadmap "Back to 
Schengen"  aimed  at  creating  in  order  to  allow  a  lifting  of  all  internal  border  controls  and  a 
return  to  a  normally  functioning  Schengen  area  are  not  fully  present  yet.  There  have 
nevertheless been steady and important achievements on the road back to a fully functioning 
Schengen area. However, at this stage, the situation in Greece and along the Western Balkans 
route remains fragile and there is an important pressure in the Member States most affected by 

1 

Communication  from  the  Commission  to  the  European  Parliament,  the  European  Council  and  the 
Council "Back to Schengen – A Roadmap", COM(2016) 120 final. 

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the secondary movements of irregular migrants coming from Greece. The full implementation 
of the European Border and Coast Guard, which would further strengthen the protection of the 
EU external borders, will be completed by January 2017. The further implementation of the 
EU-Turkey Statement will help in further diminishing the number of arrivals in the EU and 
provide a space for the national systems to further process and absorb the backlog of asylum 
applications and solidify their reception capacities.  

The full application of the existing Dublin rules must be progressively restored, with the full 
participation  of  Greece,  in  line  with  the  Commission's  recommendations2,  whilst  improving 
these  rules  for  the  future  based  on  solidarity  and  responsibility.  In  addition,  the  emergency 
relocation schemes already in place since September 2015 should continue to deliver concrete 
results  in  terms  of  numbers  of  relocated  persons.  Finally,  returns  of  persons  not  having  the 
right to stay in the European Union must be further stepped up.  

It is therefore justified to allow the Member States concerned to prolong the current internal 
border  controls  as  an  exceptional  measure  for  a  further  proportionate  period.  Based  on  the 
factual indicators available at this stage, the prolongation should not exceed three months. 

Scope of the proposal 

The Schengen States currently carrying out temporary internal border control pursuant to the 
Council Recommendation of 12 May 2016 should be permitted to continue doing so. 

However,  given  the  progressive  stabilisation  of  the  situation,  border  checks  should  only  be 
adopted  as  a  measure  of  last  resort  when  other  measures,  less  restrictive  of  cross-border 
traffic, such as police checks consistent with Article 23 of the Schengen Borders Code, cannot 
sufficiently  address  the  threats  identified.  Accordingly,  the  Member  States  that  decide  to 
maintain  internal  border  control  pursuant  to  the  present  Recommendation  should,  before 
opting  for  continuation,  examine  all  available  alternative  measures  to  border  controls.  The 
Member  States  concerned  should  inform  of  the  outcome  of  this  examination  in  their 
notification  on  the  maintenance  of  internal  border  controls  to  the  other  Member  States,  the 
European Parliament and the Commission. 

As stated in the European Council conclusions on migration of 20 October 2016, the process 
of  getting  "back  to  Schengen"  entails  adjusting  the  temporary  internal  border  controls  to 
reflect the current needs. Internal border control should be carried out only on the basis of risk 
analysis  and  intelligence,  and  should  be  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 Recommendation should review weekly the necessity, frequency, location and time of 
controls, adjust the controls to the level of the threat addressed, and phase them out wherever 
appropriate. The Member State that carries out internal border control pursuant to the present 
Recommendation should also regularly consult with the relevant Member State(s) with a view 
to ensure that internal border controls are only carried out at those parts of the internal border 

2 

Commission Recommendation of 10.2.2016 addressed to the Hellenic Republic on the urgent measures 
to  be  taken  by  Greece  in  view  of  the  resumption  of  transfers  under  Regulation  (EU)  No.  604/2013 
(C(2016) 871 final); Commission Recommendation of 15.6.2016 addressed to the Hellenic Republic on 
the  specific  urgent  measures  to  be  taken  by  Greece  in  view  of  the  resumption  of  transfers  under 
Regulation  (EU)  No.  604/2013  (C(2016)  3805  final);  Commission  Recommendation  of  28.9.2016 
addressed to the Hellenic Republic on the specific urgent measures to be taken by Greece in view of the 
resumption of transfers under Regulation (EU) No. 604/2013 (C(2016) 6311 final). 

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where it is considered necessary and proportionate in accordance with the Schengen Borders 
Code.  

A  more  detailed  reporting  obligation  should  also  be  introduced.  After  each  month  of 
implementation of the present Recommendation, the Member States concerned should report 
to  the  Commission  on  the  outcome  of  the  controls  carried  out  and  on  the  assessment 
concerning  the  continued  necessity  of  such  controls,  when  applicable.  This  report  should  at 
least  include  the  total  number  of  persons  checked,  the  total  number  of  refusals  of  entry 
following the checks, the total number of return decisions issued following the checks and the 
total  number  of  asylum  applications  received  at  the  internal  borders  where  the  checks  take 
place. 

The  Commission  will  closely  monitor  the  application  of  the  Recommendation  and  the 
situation on the ground. 

• 

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. 

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 (Schengen Borders Code). 

• 

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 

3. 

• 

n.a. 

• 

Stakeholder consultations 

Given the urgency of the proposal, a stakeholder consultation was not feasible. 

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Collection and use of expertise 

• 

n.a. 

• 

Impact assessment 

In  view  of  the  limited  time  frame  envisaged  and  considering  the  data  submitted  by  the 
Member  States  concerned  and  those  available  concerning  the  situation  in  Greece,  a  fully-
fledged impact assessment was not prepared.  

Regulatory fitness and simplification 

• 

n.a. 

• 

Fundamental rights 

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

4. 

BUDGETARY IMPLICATIONS 

The proposed measure has no implications for the EU budget. 

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2016/0347 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

setting out a Recommendation for prolonging 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)3, and in particular Article 29 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In accordance with Article 29 of the Schengen Borders Code, the Council adopted on 
12 May 2016 an 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  recommended  to  five  Schengen  States  (Austria,  Germany,  Denmark, 
Sweden  and  Norway)  to  maintain  proportionate  temporary  border  controls  for  a 
maximum  period  of  six  months  as  from  the  day  of  adoption  of  the  Implementing 
Decision,  to  address  the  serious  threat  to  public  policy  or  internal  security  posed  in 
these  States  by  the  combination  of  deficiencies  in  external  border  control  in  Greece 
and  the  secondary  movements  of  irregular  migrants  entering  via  Greece  and  who 
intend to move to other Schengen States. 

On  28  September  2016,  the  Commission  issued  its  Report  on  the  implementation  of 
the Implementing Decision. It concluded that the  internal border controls carried out 
by Austria, Germany, Denmark, Sweden and Norway have been proportionate and in 
line  with  the  Council  Recommendation.  The  Commission  further  concluded  that, 
based on the information available and the reports received from the States concerned, 
it saw no need for proposing amendments to the Implementing Decision at the time of 
reporting. 

On  18  and  21  October 2016,  the  Schengen  States  concerned  reported  for  the  second 
time to the Commission on the implementation of the Council Recommendation.  The 
information  provided  follows  a  trend  similar  to  the  data  provided  for  the  first  report 
(reduction in the number of persons to whom entry is refused, as well as in the number 
of  asylum  applications  received)  and  thus  shows  a  progressive  stabilisation  of  the 
situation.  

(5) 

However,  despite  a  sharp  drop  in  the  number  of  arrivals  of  irregular  migrants  and 
asylum seekers in the European Union, an important number of irregular migrants still 
remains  in  Greece  as  well  as  in  the  Member  States  most  affected  by  the  secondary 

3 

OJ L 77, 23.3.2016, p. 1. 

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(6) 

(7) 

(8) 

(9) 

movements of irregular migrants coming from Greece. Based on the trends observed 
in the past, it is justified to expect that these persons may want to move irregularly to 
other  Member  States  when  the  border  checks,  which  hinder  their  secondary 
movement, are lifted. 

The  cumulated  number  of  asylum  applications  received  since  the  beginning  of  the 
migratory crisis and the still incoming applications have put an important strain on the 
national administrations and services in all EU Member States and specifically in the 
Schengen States concerned by the Implementing Decision. 

Internal border controls cannot be viewed in isolation from other important factors. In 
its Communication "Back to Schengen – A Roadmap"4, the Commission identified the 
different policies to be put in place to return to a fully functioning Schengen Area. 

The Roadmap notably included the adoption and the implementation of the European 
Border and Coast Guard. Regulation (EU) 2016/1624 of the European Parliament and 
of  the  Council  of  17  September  2016  on  the  European  Border  and  Coast  Guard5 
entered  into  force  on  6  October  2016,  within  a  nine  months'  timeframe  since  the 
presentation  of  the  Commission  proposal,  showing  the  commitment  of  all  actors 
involved. It is expected that the rapid reaction pools, covering both human resources 
and technical equipment, and the rapid return pools will be established and operational 
by, respectively, 7 December 2016 and 7 January 2017.  

Another  element  identified  in  the  Back  to  Schengen  Roadmap  is  the  successful 
implementation  of  the  EU-Turkey  Statement.  While  the  implementation  of  the 
Statement,  as  set  out  in  the  third  progress  report6,  continues  to  deliver  results,  it  is 
important  to  continue  to  ensure  that  the  Statement  functions  on  a  sustained  basis. 
Moreover,  there  remains  an  on-going  need  for  the  cooperation  agreed  upon  in  the 
Statement of the Western Balkans Route Leaders meeting.  

(10) 

It follows from the above that despite the steady and important progress in the fields 
identified  by  the  Back  to  Schengen  Roadmap  and  a  progressive  stabilisation  of  the 
situation, these actions still need time to be fully implemented and the corresponding 
results to be confirmed.  

(11)  Exceptional  circumstances  constituting  a  serious  threat  to  public  policy  and  internal 
security and putting at risk the overall functioning of the Schengen area therefore still 
persist. 

(12)  Given the current fragile situation in Greece and the residue of pressure remaining in 
the  Member  States  most  affected  by  the  secondary  movements  of  irregular  migrants 
coming  from  Greece,  it  therefore  appears  justified  to  allow  a  proportionate 
prolongation  of  the  temporary  internal  border  controls  by  the  Schengen  States 
currently  carrying  out  such  controls  as  a  last  resort  measure  in  response  to  a  serious 
threat to their public policy or internal security, namely Austria, Germany, Denmark, 
Sweden  and  the  associated  country  Norway,  in  accordance  with  Article  29  of  the 
Schengen Borders Code. 

(13)  Based  on  the  factual  indicators  available  at  this  stage,  this  prolongation  should  not 
exceed  three  months  as  from  the  date  of  adoption  of  the  present  Implementing 
Decision. 

4 
5 
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COM(2016) 120 final. 
OJ L 251, 16.9.2016, p. 1–76. 
Third  Report  on  the  Progress  made  in  the  implementation  of  the  EU-Turkey  Statement  (COM(2016) 
634). 

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(14)  The  Member  States  that  decide  to  continue  carrying  out  internal  border  control 
following the present Implementing Decision should notify the other Member States, 
the European Parliament and the Commission accordingly.  

(15)  Before  opting  for  such  controls,  the  Member  States  concerned  should  examine 
whether other measures alternative to border controls could not be used to effectively 
remedy  the  identified  threat.  The  Member  States  concerned  should  inform  of  the 
outcome  of  this  reflection  and  the  reasons  for  opting  for  border  controls  in  their 
notifications. 

(16)  As stated in the European Council conclusions on migration of 20 October 2016, the 
process of getting "back to Schengen" entails adjusting the temporary internal border 
controls  to  reflect  the  current  needs.  The  controls  under  the  present  Implementing 
Decision should be carried out only to the necessary extent, limited in their intensity to 
the absolute minimum necessary. For example, when during a given period there is an 
insignificant flow, controls at certain border sections may then not even be necessary. 
In order to impede as little as possible the crossing of the relevant internal borders for 
the general public, only targeted, risk analysis and intelligence based controls can take 
place.  Furthermore,  the  necessity  of  these  controls  at  the  relevant  border  sections 
should  be  examined  and  re-evaluated  regularly  in  cooperation  with  all  the  Member 
States affected with the objective of progressively reducing them.  

(17)  At the end of each month of implementation of the present Implementing Decision, a 
complete  report  on  the  results  of  the  checks  carried  out  should  be  sent  to  the 
Commission,  together  with  an  assessment  of  their  continuous  necessity  when 
applicable.  This  report should  include  the total  number  of  persons  checked,  the total 
number of refusals of entry following the checks, the total number of return decisions 
issued  following  the  checks  and  the  total  number  of  asylum  applications  received  at 
the internal borders where the checks take place. 

(18)  The Council takes note that the Commission has announced that it will closely monitor 

the application of this Implementing Decision. 

HEREBY RECOMMENDS:  

1.  Austria,  Germany,  Denmark,  Sweden  and  Norway  to  prolong  proportionate,  temporary 
border controls for a maximum period of three months, starting from the day of 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; 

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

2.  Before  prolonging  such  controls,  the  Member  States  concerned  should  exchange  views 
with  the  relevant  Member  State(s)  with  a  view  to  ensuring  that  internal  border  controls  are 
carried out only where it is considered necessary and proportionate. Furthermore, the Member 

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States  concerned  should  ensure  that  internal  border  controls  are  only  carried  out  as  a  last 
resort measure when other  alternative  measures cannot achieve the same effect, and only  at 
those  parts  of  the  internal  border  where  it  is  considered  necessary  and  proportionate,  in 
accordance with the Schengen Borders Code. The Member States concerned should notify the 
other Member States, the European Parliament and the Commission accordingly. 

3. Border control should remain targeted, based on risk analysis and intelligence, 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 review weekly 
the necessity, frequency, location and time of controls, adjust the intensity of the controls to 
the  level  of  the  threat  addressed,  phasing  them  out  wherever  appropriate,  and  report  to  the 
Commission every month. 

Done at Strasbourg, 

For the Council 
The President 

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