Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders
Date: 2017-09-27
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU Member State, Schengen Agreement, area of freedom, security and justice, border control, cross-border cooperation, external border of the EU, internal border of the EU

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   EUROPEAN COMMISSION  Brussels, 27.9.2017  COM(2017) 571 final 2017/0245 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders   
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Over the last two years, the European Union has witnessed a significant increase of temporary 
reintroduction  of  border  control  at  internal  borders.  Since  September  2015,  border  controls 
have  been  reintroduced  and  prolonged  almost  50  times  (as  compared  to  36  cases  of 
reintroduced  border  controls  in  the  period  2006-20151).  This  was  due  to  the  secondary 
movements  of  irregular  migrants  and  the  increase  of  cross-border  terrorist  threats  posing  a 
serious threat to the internal security or public policy of a number of Schengen States. These 
serious threats compelled some Member States to prolong reintroduced border control several 
times, sometimes until the exhaustion of the current legal time frames.  

Already in May 2017 the Commission recognised that new security challenges have arisen in 
the past years, as demonstrated by repeated terrorist attacks. In this respect, whilst the current 
legal  framework  has  been  sufficient  to  address challenges  faced  until  now,  the  Commission 
started  a  reflection  on  whether  it  is  sufficiently  adapted  to  address  the  evolving  security 
challenges. 

Based  on  the  current  Schengen  rules,  border  controls  at  internal  borders  are  possible  for 
longer than six months when there are serious deficiencies in the external border management 
of  a  Member  State,  as  demonstrated  during  a  Schengen  Evaluation,  which  put  the  overall 
functioning  of  the  area  without  internal  border  control  at  risk  or  as  a  result  of  the  non-
compliance of a Member State with a Council decision identifying measures to mitigate the 
risks  in  the  control  of  external  borders  jeopardising  the  functioning  of  the  Schengen  area 
(Article  29  of  the  Schengen  Borders  Code  procedure,  as  modified  by  Regulation  (EU) 
2016/1624 of 14 September 2016 on the European Border and Coast Guard)2. In such cases, 
the  Council,  based  on  a  proposal  of  the  Commission,  can  recommend  that  one  or  more 
Member States decide to reintroduce border control at all or at specific parts of their internal 
borders,  for  a  specific  period  of  time,  not  exceeding  six-months  periods,  renewable  three 
times3.  

In  situations  where  the  serious  threat  to  public  policy  or  internal  security  is  not  related  to 
deficiencies  in  the  management  of  the  external  borders  as  demonstrated  during  a  Schengen 
Evaluation, the reintroduction of border control at internal borders is subject to the conditions 
and  time  limits  set  out  in  Articles  25  to  28  of  the  Schengen  Borders  Code.  Accordingly, 
border  control  at  internal  border  can  be  carried  out  for  up  to  six  months  -  in  case  of 
foreseeable events such as international sport or political events (Article 25), or for up to two 
months  -  in  cases  requiring  immediate  action  (Article  28).  In  the  interpretation  of  the 

See  the  list  of  the  reintroduced  border  controls  at  internal  borders  https://ec.europa.eu/home-

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affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-
control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf. 
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In line with this procedure, on 12 May 2016 the Council recommended, on the basis of a Commission 
proposal,  that  five  Member  States  most  affected  by  the  secondary  movements  reintroduce  border  controls  at 
some of their internal borders. On 12 May 2017 the Council, authorised these five Member States for the third 
and last time to extend these controls until 11 November 2017. 
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With the new European Border and Coast Guard Regulation which has brought new resources and tools 
(such  as  the  mandatory  vulnerability  assessments  and  their  follow  up  recommendations,  and  the  mandatory 
pooling of resources) the EU border management is more resilient to new challenges, should they arise again. 
This should significantly limit the grounds for temporary reintroduction of border controls at internal borders in 
relation to the situation at the external borders. 

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Commission,  the  periods  of  reintroduced  border  control  under  Articles  28  and  25  can 
cumulate. This means that with regard to decisions on reintroduction of border controls based 
on  different  grounds,  each  notification  is  examined  individually  and  on  its  own  merits  with 
the applicable deadlines applying for each particular case.  

Overall, the use of temporary reintroduction of border control shows that the Member States 
apply this measure in a responsible manner4. The costs of a non-Schengen simulation clearly 
demonstrate that this is always a costly decision for the economy5.  

In the past two years, the rules and procedure for prolongation of temporary internal border 
control proved however to be insufficiently adapted to address the increased threats to public 
policy  or  internal  security.  The  current  rules  are  also  not  promoting  the  use  of  alternative 
measures to mitigate serious threats. Moreover there is a need to ensure that the Member State 
intending to reintroduce or prolong border controls cooperates with its neighbouring Member 
States.  Finally,  there  is  a  need  to  better  reflect  in  the  legal  framework  the  obligation  for 
Member  States  to  assess,  well  in  advance  of  the  decision  on  the  reintroduction  of  internal 
border  control,  if  and  how  the  available  alternative  measures  could  address  the  identified 
threat, in line with the Commission Recommendation of 12 May 2017 on proportionate police 
checks and cross-border cooperation in the Schengen area, which, among others encouraged 
Member  States  to  give  precedence  to  proportionate  police  checks  over  the  temporary 
reintroduction of border control in case of a serious threat to internal security or public policy.   

In light of these considerations, the Commission came to the conclusion that there is a need to 
update the rules concerning the temporary reintroduction of border control at internal borders.  

In line with that conclusion, the objective of the proposal is:  

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to  ensure  that  the  time  limits  applicable  to  the  temporary  border  control  at  internal 
borders  enable  Member  States  to  take,  when  necessary,  the  measures  needed  to 
respond to a serious threats to internal security or public policy;  

to  introduce  better  procedural  safeguards  in  order  to  ensure  that  the  decision  on 
temporary  border  control  at  internal  borders  or  their  prolongation  is  based  on  a 
proper  risk  assessment  and  is  taken  in  cooperation  with  the  other  Member  States 
concerned; 

To that end, it is proposed that: 

the time limit for temporary  reintroduction  of border  control  at internal borders for 
the foreseeable duration of the serious threat is increased up to one year (instead of 
six months) and the limit for the length of prolongation periods is increased from up 
to 30 days to up to 6 months. 

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Between 2006 i.e. the date of adoption of the Schengen Borders Code and 2015, i.e. at the wake of the 
migratory crisis, border controls have been reintroduced 36 times and hardly ever have been prolonged, lasting 
normally only for a few days or weeks. 
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According to the Commission analysis of direct economic cost of non-Schengen i.e. the situation where 
the  border  controls  have  been  reintroduced  for  a  longer  period  of  time  delays  at  the  borders  would  have  a 
substantial impact on cross-border transport (notably through road), tourism, public administrations and cross-
border workers and travellers. For those categories, the direct costs are estimated to range between €5 and €18 
billion per year (or 0.06%-0.13% of GDP), depending on the time spent due to delays. The medium-term indirect 
costs  of  non-Schengen  may  be  considerably  higher  than  those  direct  estimates,  as  the  impacts  on  intra-
community  trade,  investment  and  mobility  would  be  unprecedented  if  rolling-back  Schengen  puts  at  risk  the 
economic integration. 

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Member  States  will  prepare  and  submit  a  risk  assessment  assessing  how  long  the 
identified threat is expected to persist and which sections of the internal borders are 
affected, and demonstrating that the prolongation of internal border control is a last 
resort  measure;  if  border  controls  are  prolonged  for  more  than  six  months,  the 
Member  State  will  also  explain  retrospectively  how  border  control  contributed  to 
address  the  identified  threat;  in  order  to  guarantee  the  quality  of  such  risk 
assessments, the relevant Agencies (European Border and Coast Guard and Europol) 
will be involved by the Commission. 

a  better  follow  up  to  the  opinion  of  the  Commission  expressing  concerns  on  the 
necessity  or  proportionality  of  border  controls  and  the  consultation  procedure 
involving the Commission, Member States and, as now proposed, relevant Agencies, 
is  put  in  place;  the  need  for  cooperation  with  the  neighbouring  Member  States 
affected  by  the  intended  border  controls  will  be  better  ensured  in  the  existing 
consultation procedure. 

a  new  possibility  is  introduced  to  extend  internal  border  controls  by  a  maximum 
period  of  two  years  where  the  serious  threat  to  internal  security  or  public  policy 
persists beyond the one-year deadline, provided that it can be attributed to the same 
grounds (e.g. threat related to the operation of a cross-border terrorist network) and 
that  commensurate  exceptional  national  measures  are  taken  within  the  territory  to 
address the threat (such as the state of emergency). 

In the context of these amendments, the proposal also clarifies the wording determining the 
deadline applicable under Article 29 of the Schengen Borders Code.  

The proposal does not change the grounds for the temporary reintroduction of border control 
at internal borders as envisaged by the Schengen Borders Code.  

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Consistency with existing policy provisions in the policy area 

The proposal modifies the general deadlines for temporary reintroduction of border control at 
internal borders as set out in Article 25, namely, in case of foreseeable events/threats, while 
preserving the current principle of temporary reintroduction of border control and safeguards 
applicable  thereto,  with,  on  one  hand,  the  Commission  having  the  power  (and  the  duty,  in 
cases beyond six months) to take a stance on the necessity and proportionality of the intended 
checks  and,  on  the  other,  the  'consultation  procedure'  as  referred  to  in  Article  27(5)  of  the 
Schengen  Borders Code, now to  be  reinforced by the participation  of the relevant  Agencies 
having  the  expertise  to  assess  the  information  submitted  by  the  Member  State  concerned  in 
the  notification  and  the  risk  assessment.  Moreover,  the  criteria  for  the  temporary 
reintroduction  of  border  control  at  internal  borders  set  out  in  Article  26  of  the  Schengen 
Borders Code will continue to apply. 

The proposal strengthens the principle that reintroducing controls at internal borders must be a 
last-resort measure. Under Article 23 of the Schengen Borders Code, Member States remain 
entitled to carry out police checks within the territory, including in the border area, which in 
some cases can be an effective alternative to the temporary reintroduction of internal border 
control.  The  requirement  to  present  a  risk  assessment  demonstrating  that  the  intended 
reintroduction  or  prolongation  of  border  controls  is  a  last  resort  measure  should  further 
encourage  Member  States  to  consider  the  use  of  alternative  measures  such  as  reinforced 
police measures. In that respect, the proposal will further support the implementation of the 
Commission Recommendation on proportionate police checks within the territory6, where the 

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C(2017) 3349 final. 

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Commission specifically encouraged Member States to give precedence to police checks over 
the temporary reintroduction of border controls at internal borders.  

The proposed changes are consistent with Article 72 TFEU as they do not affect the exercise 
of the responsibilities incumbent upon Member States with regard to the maintenance of law 
and order and the safeguarding of internal security. 

Article 29 of the Schengen Borders Code will continue to offer the only possibility to prolong 
border  controls  at  internal  borders  in  case  of  serious  deficiencies  in  the  management  of  the 
external  borders  by  a  Member  State  as  demonstrated  by  a  Schengen  Evaluation.  This 
possibility  has  been  recently  reinforced  by  relevant  provisions  in  the  European  Border  and 
Coast Guard Regulation, where the lack of proper follow-up from the side of a Member State 
to  a  negative  vulnerability  assessment  or  the  lack  of  request  from  a  Member  State  for 
sufficient support from the European Border and Coast Guard Agency to respond to a specific 
and  disproportionate  pressure  at  its  external  borders  putting  at  risk  the  functioning  of  the 
Schengen  area,  could  justify  temporary  reintroduction  of  border  controls  at  internal  borders 
(Article 19(10) of the Schengen Borders Code).  

• 

Consistency with other Union policies 

Pursuant to Article 26 of the Schengen Borders Code which continues to apply, any decision 
on  temporary  reintroduction  or  prolongation  of  internal  border  control  should  take  into 
account,  in  particular,  the  likely  impact  of  such  measure  on  the  free  movement  of  persons 
within  the  area  without  internal  border  control.  In  this  context,  it  should  be  recalled  that 
Directive  2004/38/EC7  does  not  contain  a  right  to  be  free  from  security  checks  on  the 
occasion  of  crossing  the  borders  at  which  controls  are  carried  in  line  with  the  Schengen 
Borders  Code.  Therefore,  the  updating  of  the  maximum  period  of  border  control  at  internal 
borders  does  not  per  se  imply  a  negative  impact  on  the  freedom  of  movement;  only  the 
abusive use of such possibility could affect the freedom of movement.  

To mitigate such risk, it is proposed that besides the existing possibility for the Commission 
to  voice  at  any  moment  its  concerns  related  to  the  necessity  or  proportionality  of  border 
controls  (their  reintroduction  or  prolongation),  there  will  be  now  an  obligation  on  the 
Commission to issue an opinion whenever border controls are carried out for longer than six 
months. The consultation procedure contains a further safeguard as it should now also involve 
the relevant Agencies. The proposed text for the consultation procedure, which would be led 
by the Commission, clarified that the views of the Member States affected by such controls 
are duly taken into account. 

The proposal contributes to enhancing security within the Schengen area by giving Member 
States a legal possibility to prolong, where necessary, internal border control to respond to a 
serious threat to public policy or internal security that justifies such controls.  

Updating the Schengen legal framework in light of experience in facing up to new challenges 
in order to preserve its capacity to respond appropriately to persistent serious threats to public 
policy or internal security, offering additional time that might be necessary to address them, is 
fully in line with the Commission's work set out in the European Agenda on Migration and 
the European Agenda on Security.  

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Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the  Member 
States, OJ 158/77 of 30.4.2004. 

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2. 

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LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Article 77 (2)(e) TFEU. 

The  proposal  amends  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)  

Action in the area of freedom, security and justice falls within an area of competence shared 
between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the 
subsidiarity  principle  is  applicable  by  virtue  of  Article  5(3) TEU,  according  to  which  the 
Union  shall  act  only  if  and  in  so  far  as  the  objectives  of  the  proposed  action  cannot  be 
sufficiently  achieved  by  the  Member  States,  either  at  central  level  or  at  regional  and  local 
level,  but  can  rather,  by  reason  of  the  scale  or  effects  of  the  proposed  action,  be  better 
achieved at Union level. 

The proposal  modifies  the existing provisions of Chapter III  of the Schengen  Borders Code 
related  to  the  temporary  reintroduction  of  border  control  at  internal  borders,  in  a  limited 
manner, with a view to respond to the recent experience in the last years where a number of 
Member  States  prolonged  several  times  the  initial  periods  of  reintroduced  border  control  at 
internal borders. 

The proposal also reinforces the obligations of Member States vis-à-vis neighbouring Member 
States,  affected  by  the  intended  reintroduction  or  prolongation  of  border  control,  as  the 
efficiency of the current provisions in this regard proved to be limited. 

The  objective  of  defining  the  scope,  duration  and  procedure  for  exceptionally  prolonging 
temporary  controls  at  specific  section(s)  of  the  internal  borders,  taking  into  account  the 
responsibilities of the Member States with regard to public order and internal security as well 
as the need to limit controls at internal borders to what is strictly necessary, so as to preserve 
the area without controls at internal borders, cannot be sufficiently achieved by the Member 
States  acting  alone,  and  can  be  better  achieved  at  the  level  of  the  Union.  The  Union  may 
therefore adopt the proposed measures, in accordance with the principle of subsidiarity. 

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Proportionality 

The  proposed  changes  in  the rules on  temporary  reintroduction  of  border  control  at  internal 
borders  are  proportionate  to  the  objective  of  protecting  public  policy  and  ensuring  internal 
security in the area without internal border controls.  

The proposal fully recognises that under the Schengen rules the temporary reintroduction of 
border control and its subsequent prolongation must remain an exception, subject to specific 
rules common for the members of the Schengen area. 

The  proposal  is  responding  to  the  identified  shortcoming  in  the  existing  rules  as  regards 
persistent threats to public policy and internal security which have been experienced by some 
Member States in recent years (such as cross-border terrorist threats, secondary movements of 
irregular  migrants  that  justified  the  temporary  reintroduction  of  internal  border  control). 
Based  on  this  experience,  it  appears  that  even  the  practice  accepted  by  the  Commission  to 
combine the maximum time limits for border control at internal borders based on Article 28 
(events  requiring  immediate  actions)  and  Article  25  (foreseeable  events)  may  prove  to  be 
insufficient to address certain long-lasting threats.  

To that end, the proposal: 

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1) Extends the general deadline for foreseeable events up to one year.  

This  maximum  deadline  is  expected  to  be  applied  if  threats  to  public  policy  or  internal 
security  cannot  be  addressed  within  a  few  months;  this  possibility  should  not  affect  the 
average  length  of  border  control  reintroduced  based  on  the  most  frequent  grounds  related 
generally to sport  or  high level political events. To recall, within these limits set out  by the 
Schengen Borders Code the decision on the actual duration of the temporary reintroduction of 
border  controls  under  Article  25  or  28  of  the  Schengen  Borders  Code  is  in  hands  of  the 
Member State. However, as the scope and duration of the temporary reintroduction of border 
control  at  internal  borders  should  not  exceed  what  is  strictly  necessary  to  respond  to  the 
serious threat, the Commission can oversee the actual length of such controls and may issue 
an opinion in this respect; in case of concerns related to the necessity or proportionality of the 
reintroduced border controls, or when border control at internal borders is carried out for more 
than six months, the Commission is obliged to issue an opinion.  

Furthermore,  any  possible  abuse  of  the  updated  timeframe  will  be  also  addressed  under  the 
general powers of the Commission as the guardian of the Treaties. 

Moreover,  any  reintroduction  or  prolongation  of  border  controls  will  be  subject  to  risk 
assessment which should look into the expected length of the threat and the border sections 
affected, assess the available measures and explain why the chosen one is considered to be the 
best  to  address  the  identified  threat.  After  six  months  of  effective  border  control,  the  risk 
assessment should also provide an analysis of how the previous prolongation(s) contributed to 
remedying the identified threat. 

2) The proposal also introduces a possibility exceptionally to prolong internal border control 
if the same  threats persist beyond one year but only  if the serious threat to  public policy or 
internal security invoked to justify the prolongation of border control is specific enough and 
corresponds  to  commensurate  exceptional  national  measures,  in  particular  a  state  of 
emergency. In order to ensure the extraordinary nature of such further prolongation, a specific 
possibility to go beyond the general deadlines in the Schengen Borders Code would require an 
opinion  by  the  Commission  followed  by  a  recommendation  of  the  Council  setting  where 
appropriate, the conditions for cooperation between the Member States concerned and which 
would  constitute  a  prerequisite  for  any  prolongation.  The  recommendation  could  concern 
periods of up to six months, and could be prolonged no more than three times for up to six 
months each time, under the same procedure.  

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Choice of the instrument 

The  proposal  concerns  the  amendment  of  a  Regulation.  As  the  proposal  complements  the 
existing provisions of Title III, Chapter II concerning the temporary reintroduction of border 
control at internal borders of this Regulation, no other instrument than a Regulation would be 
appropriate. 

3. 

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RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

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STAKEHOLDER 

Impact assessment 

The  proposed  amendment  allows  for  some  controlled  flexibility  within  the  existing  rules, 
without  altering  the  logic  of  the  exceptional  reintroduction  of  border  control  at  internal 
borders. This justifies a simplified analysis of the available options. There is therefore no need 
for a fully-fledged impact assessment. 

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• 

Fundamental rights 

The proposed amendment respects the fundamental rights and principles set out in the Charter 
of  Fundamental  Rights  of  the  European  Union,  in  particular  the  freedom  of  movement  and 
residence (Article 45). The safeguards of Article 3a, Article 4 and Article 7 of the Schengen 
Borders Code continue to apply.  

4. 

BUDGETARY IMPLICATIONS 

The proposed amendment has no implications for the EU budget.  

5. 

• 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

Article 25 is modified as follows:  

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The  maximum  deadline  for  temporary  reintroduction  of  border  control  in  case  of 
foreseeable events posing a serious threat to public policy or internal security, as set 
out in paragraph 4 first sentence of this provision is prolonged from 6 months to 1 
year. In  line with  that,  in order  to make  the length  of renewable  periods  under this 
provision  more  proportionate  to  the  overall  maximum  duration  of  border  controls, 
paragraphs  1  and  3  are  also  modified  and  provide  for  the  extension  of  possible 
renewable periods from 30 days to 6 months. 

The purpose of this modification is to take into account the persistent serious threats 
to  public  policy  or  internal  security  (such  as  cross-border  terrorist  threats  or 
secondary movements  of irregular migrants  that justify temporary  reintroduction of 
internal border control), which, as demonstrated over the last few years, may require 
more time to deal with.  

Paragraph 2 is amended in order to insert the reference to the new Article 27a. 

An extraordinary possibility of prolonging border control at internal borders beyond 
the maximum deadline is added in paragraph 4. Accordingly, where a serious threat 
to public policy or internal security persists beyond one year, the border controls can 
be  exceptionally  prolonged  for  renewable  periods  of  up  to  six  months,  and  for  a 
maximum period of two years, subject to the conditions and following the procedure 
set out in a new Article 27a. 

The purpose of this modification is to make the updated rules more resistant to the 
new challenges.  

Article 27 is modified as follows: 

 

In  paragraph  1  which  is  defining  the  elements  of  the  intended  reintroduction  of 
border control (which, based on Article 25(3), are also applicable to prolongations), a 
new point aa) is added introducing a new obligation for the Member States to prepare 
and share a risk assessment. Such risk assessment should assess the expected length 
of the threat and the affected border sections and demonstrate that border controls are 
a  last  resort  measure.  It  should  also  report  in  detail  on  the  coordination  with  the 
neighbouring Member States concerned by such temporary border control at internal 
borders.  In  order  to  ensure  the  quality  of  this  data,  the  Commission  is  required  to 
involve  the  relevant  Agency,  depending  on  the  threat  underpinning  the  intended 
reintroduction or prolongation of border control (i.e. either the European Border and 
Coast Guard Agency or Europol). 

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The  purpose  of  adding  this  new  element  is  to  underline  the  last  resort  character  of 
border  controls  as  a  measure  to  address  serious  threats  to  public  policy  or  internal 
security, which should be used only if other measures are considered not sufficient to 
attain the same results. 

This objective is reinforced by the specific obligation imposed on the Member States 
going  beyond  the  six  months  period  of  border  controls,  to  retrospectively 
demonstrate  that  the  reintroduced  border  control  contributed  to  addressing  the 
identified threat. 
The  amended  provision  also  underlines  the  need  of  coordination  with  the 
neighbouring Member States affected by the intended border control.  

In this context, in point e) wording is added to clarify that the coordination with the 
neighbouring  Member  States  concerned  should  take  place  before  the  decision  on 
reintroduction or prolongation of border controls at internal borders.  

Furthermore,  the  last  sentence  of  this  paragraph  is  modified  to  highlight  that  the 
cooperation  with  the  neighbouring  Member  States  will  be  subject  to  the  particular 
attention from the Commission, which may enquire more on that. 

In view of the specific procedure of prolonging border control beyond one year, the 
circumstances  under  which  the  Commission  is  required  to  issue  an  opinion,  as 
specified in paragraph 4, are modified accordingly. Following this modification, the 
Commission  or  any  Member  State  may  issue  an  opinion  but  in  case  of  concerns 
related  to  the  necessity  or  proportionality  of  the  intended  border  controls  or  when 
border  control  at  internal  borders  is  carried  out  for  more  than  six  months,  the 
Commission is obliged to issue an opinion. This obligation is reinforced and updated 
to take into account the new obligation related to preparing the risk assessment and 
the role of the Agencies in assessing it. 

Paragraph 5 which is setting out the details of the consultation procedure between the 
Commission and the Member States, is also updated to reflect the involvement of the 
Agencies. Accordingly, the Agencies are expected to participate in this process. The 
other modifications reflect changes in previous paragraphs giving more visibility to 
the  check  of  necessity  and  proportionality  of  the  intended  border  controls.  Finally, 
the  proposed  modifications  aim  at  ensuring  that  the  temporary  reintroduction  or 
prolongation  of  border  control  at  internal  borders  is  accompanied  in  practice  by 
coordination measures between the Member States concerned by such controls.    

 

 

As  mentioned  already  above,  a  new  Article  27a  is  added  with  a  view  to  determining  the 
conditions and procedure to be followed in case of a serious threat to public policy or internal 
security which exceeds one year.  

 

Paragraph 1 explains that border controls can be exceptionally prolonged beyond one 
year where a serious threat to internal security or public policy is sufficiently specific 
and persists beyond one year. This provision should be read in the light of Recital 8 
which  gives  more  guidance  how  the  specificity  of  the  threat  can  be  demonstrated. 
Thus, also taking into account the criteria for the temporary reintroduction of border 
control  as  set  out  in  Article  26,  border  controls  could  be  exceptionally  prolonged 
beyond  one  year  to  support  the  exceptional  measures  taken  at  national  level  to 
address the persisting serious threat to public policy or internal security (such as the 
state of emergency). 

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 

 

Paragraph  2  refers  to  procedural  provisions  of  Article  27  which  should  continue  to 
apply (conditions related to the content of a notification, rules on sharing information 
with  the  European  Parliament  and  the  Council,  the  right  to  classify  some 
information).  

Paragraph  3  and  4  set  up  the  procedure  to  be  followed.  Accordingly,  such 
extraordinary prolongation can be recommended by the Council, taking into account 
the opinion of the Commission (which is compulsory, in view of the modification in 
Article  27(4)  as  described  above,  and  as  reflected  in  paragraph  3  of  Article  27a).  

The  prolongation  can  be  recommended  three  times,  for  periods  of  up  to  six  months 
each time, following the same procedure. In view of the fact that the need of further 
prolongation  of  border  controls  at  internal  borders  beyond  one  year  is  likely  to  be 
motivated  by  grounds  which  touch  on  national  executive  and  enforcement  powers, 
and  should  be  corroborated  by  commensurate  exceptional  national  measures,  it  is 
proposed that the recommendation of the Council should not depend on a proposal of 
the Commission which, given these circumstances, would risk relying on very limited 
information.  The  opinion  of  the  Commission  should  however  be  duly  taken  into 
account by the Council. 

In line with the previous provisions requiring more involvement of the neighbouring 
Member States, it is also proposed that the Council in its recommendation determines, 
where  appropriate,  the  conditions  of  cooperation  between  the  Member  States 
concerned. 

Article  2  of  the  Regulation  contains  standard  conditions  on  entry  into  force  and  scope  of 
application.  

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2017/0245 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary 
reintroduction of border control at internal borders  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular point 
(e) of Article 77(2) thereof, 

Having regard to the proposal from the European Commission, 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In  an  area  where  persons  may  move  freely,  the  reintroduction  of  border  control  at 
internal  borders  should  remain  an  exception.  The  reintroduction  of  internal  border 
control should be decided only as a measure of last resort, for a limited period of time 
and to the extent that controls are necessary and proportionate to the identified serious 
threats to public policy or internal security. 

The  identified  serious  threats  can  be  addressed  by  different  measures,  depending  on 
their nature and scale. The Member States have at their disposal also police powers, as 
referred to in Article 23 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  borders  (Schengen  Borders  Code)8,  which,  subject  to 
some conditions, can be used in the border areas. The Commission Recommendation 
on proportionate police checks and police cooperation in the Schengen area9 provides 
guidelines to the Member States to that end.  

In  accordance  with  the  provisions  of  Title  III,  Chapter  II  of  the  Schengen  Borders 
Code, internal border control can be temporarily reintroduced as a last resort measure 
in case of a serious threat to public policy or internal security for a limited period of up 
to  six  months  - for foreseeable  events (Article 25), and  for a limited period  of up to 
two  months  -  for  cases  requiring  immediate  action  (Article  28).  These  time  frames 
proved  to  be  sufficient  to  tackle  the  serious  threats  related  to  the  most  frequent 
foreseeable events such as international sport or high level political events. 

However, experience has shown that certain serious threats to public policy or internal 
security,  such  as  cross-border  terrorist  threats  or  specific  cases  of  secondary 
movements of irregular migrants within the Union that justified the reintroduction of 
border controls, may persist well beyond the above periods. It is therefore needed and 
justified to adjust the time limits applicable to the temporary reintroduction of border 

8 
9 

OJ L 77, 23.3.2016, p.1. 
C(2017) 3349 final of 12.05.2017. 

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(5) 

(6) 

(7) 

(8) 

control  to  the  current  needs,  while  ensuring  that  this  measure  is  not  abused  and 
remains an exception, to be used only as a last resort. To that end, the general deadline 
applicable under Article 25 of the Schengen Borders Code should be extended to one 
year. 

In order to guarantee that these internal border controls remain an exception, Member 
States  should  submit  a  risk  assessment  concerning  the  intended  reintroduction  of 
border  control  or  prolongation  thereof.  The  risk  assessment  should,  in  particular, 
assess for how long the identified threat is expected to persist and which sections of 
the internal borders are affected, demonstrate that the prolongation of border controls 
is a last resort measure and explain how border control would help in addressing the 
identified threat. In case of internal border control going beyond six months, the risk 
assessment should also demonstrate retrospectively the efficiency of the reintroduced 
border  control  in  addressing  the  identified  threat  and  explain  in  detail  how  each 
neighbouring Member State affected by such prolongation was consulted and involved 
in determining the least burdensome operational arrangements. 

The  quality  of  the  risk  assessment  submitted  by  the  Member  State  will  be  very 
important  for  the  assessment  of  the  necessity  and  proportionality  of  the  intended 
reintroduction  or  prolongation  of  border  control.  The  European  Border  and  Coast 
Guard Agency and Europol should be involved in that assessment.  

The power of the Commission to issue an opinion under Article 27(4) of the Schengen 
Borders Code should be modified to reflect the new obligations on the Member States 
related  to  the  risk  assessment,  including  the  cooperation  with  Member  States 
concerned.  When  border  control  at  internal  borders  is  carried  out  for  more  than  six 
months, the Commission should be obliged to issue an opinion. Also the consultation 
procedure  as  provided  for  in  Article  27(5)  of  the  Schengen  Borders  Code  should  be 
modified  in  order  to  reflect  the  role  of  the  Agencies  (European  Border  and  Coast 
Guard  Agency  and  Europol)  and  focus  on  the  practical  implementation  of  different 
aspects of cooperation between the Member States, including the coordination, where 
appropriate, of different measures on both sides of the border. 

In order to make the revised rules better adapted to the challenges related to persistent 
serious  threats  to  public  policy  or  internal  security,  a  specific  possibility  should  be 
provided  to  prolong  internal  border  controls  beyond  one  year.  Such  prolongation 
should accompany commensurate exceptional national measures also taken within the 
territory  to  address  the  threat,  such  as  a  state  of  emergency.  In  any  case,  such  a 
possibility  should  not  lead  to  the  further  prolongation  of  temporary  internal  border 
controls beyond two years. 

(9) 

The  reference  to  Article  29  in  Article  25(4)  should  be  modified  with  a  view  of 
clarifying the relation between the time periods applicable under Article 29 and Article 
25 of the Schengen Borders Code. 

(10)  The possibility to carry out temporary internal border controls in response to a specific 
threat  to  public  policy  or  internal  security  which  persists  beyond  a  year  should  be 
subject to a specific procedure.  

(11)  To  that  end,  the  Commission  should  issue  an  opinion  on  the  necessity  and 
proportionality of such prolongation and, where appropriate, on the cooperation with 
the neighbouring Member States. 

(12) 

In  view  of  the  nature  of  such  measures,  which  touch  on  national  executive  and 
enforcement  powers  regarding  serious  threats  to  public  policy  or  internal  security, 

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implementing powers to adopt recommendations under this specific procedure should 
exceptionally be conferred on the Council. 

(13)  The  Council,  taking  account  of  the  Commission's  opinion,  may  recommend  such 
extraordinary further prolongation and where appropriate determine the conditions for 
cooperation between the Member States concerned, with a view to ensuring that it is 
an  exceptional  measure,  in  place  only  for  as  long  as  necessary  and  justified,  and 
consistent  with  the  measures  also  taken  at  the  national  level  within  the  territory  to 
address  the  same  specific  threat  to  public  policy  or  internal  security.  The  Council 
recommendation  should  be  a  prerequisite  for  any  further  prolongation  beyond  the 
period of one year and hence be of the same nature as the one already provided for in 
Article 29. 

(14)  Since  the  objective  of  this  Regulation,  namely  allowing  the  prolongation  in 
exceptional cases of reintroduced border controls at specific section(s) of the internal 
borders for the time period necessary for a Member State to adequately  respond to a 
persistent  threat  of  a  cross-border  nature,  is  to  complement  the  current  rules  on 
temporary reintroduction of border controls at internal borders, it cannot be achieved 
by  Member  States  acting  alone;  an  amendment  of  the  common  rules  established  at 
Union level is necessary. Thus, the Union may adopt measures, in accordance with the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary in order to achieve those objectives. 

(15) 

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

(16)  This Regulation constitutes a development of the provisions of the Schengen acquis, in 
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision 
2000/365/EC10; the United Kingdom is therefore not taking part in the adoption of this 
Regulation and is not bound by it or subject to its application. 

(17)  This Regulation constitutes a development of the provisions of the Schengen acquis, in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC11; 
Ireland is therefore not taking part in the adoption of this Regulation and is not bound 
by it or subject to its application.  

(18)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  latter's  association  with  the  implementation,  application  and 

10 

11 

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 
1.6.2000, p. 43). 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of 
the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20). 

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development of the Schengen acquis12, which fall within the area referred to in point A 
of Article 1 of Council Decision 1999/437/EC.13 

(19)  As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation's association with the implementation, application and development of 
the  Schengen  acquis14  which  fall  within  the  area  referred  to  in  Article  1,  point  A  of 
Decision  1999/437/EC15  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC.16 

(20)  As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Protocol  between  the  European 
Union,  the  European  Community,  the  Swiss  Confederation  and  the  Principality  of 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development  of  the  Schengen  acquis17  which  fall  within  the  area  referred  to  in 
Article 1,  point  A  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of 
Council Decision 2011/350/EU18.  

(21)  This Regulation respects fundamental rights and observes the principles recognised in 

particular by the Charter of Fundamental Rights of the European Union.  

(22)  Regulation (EU) No 2016/399 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Regulation (EU) No 2016/399 is amended as follows: 

(1) 

Article 25 is replaced by the following: 

Article 1 

12 
13 

14 
15 

16 

17 
18 

OJ L 176, 10.7.1999, p. 36. 
Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements  for  the  application  of  the 
Agreement  concluded  by  the  Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the 
Kingdom  of  Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). 
OJ L 53, 27.2.2008, p. 52. 
Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements  for  the  application  of  the 
Agreement  concluded  by  the  Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the 
Kingdom  of  Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). 
Council  Decision  2008/146/EC  of  28  January  2008  on  the  conclusion,  on  behalf  of  the  European 
Community, of the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation's  association  with  the  implementation,  application  and 
development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). 
OJ L 160, 18.6.2011, p. 21. 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons  (OJ  L  160, 
18.6.2011, p. 19). 

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"1.  Where,  in  the  area  without  internal  border  control,  there  is  a  serious  threat  to 
public  policy  or  internal  security  in  a  Member  State,  that  Member  State  may 
exceptionally reintroduce border control at all or specific parts of its internal borders 
for  a  limited  period  of  up  to  30  days,  or  for  the  foreseeable  duration  of  the  serious 
threat  if  its  duration  exceeds  30  days,  but  not  exceeding  six  months.  The  scope  and 
duration  of  the  temporary  reintroduction  of  border  control  at  internal  borders  shall 
not exceed what is strictly necessary to respond to the serious threat. 

2. Border control at internal borders shall only be reintroduced as a last resort, and 
in accordance with Articles 27, 27a, 28 and 29. The criteria referred to, respectively, 
in  Articles  26  and  30  shall  be  taken  into  account  in  each  case  where  a  decision  on 
reintroduction  of  border  control  at  internal  borders  is  considered  pursuant, 
respectively, to Article 27, 27a, 28 or 29. 

3.  If  the  serious  threat  to  public  policy  or  internal  security  in  the  Member  State 
concerned persists beyond the period provided for in paragraph 1 of this Article, that 
Member State may prolong  border control at its internal borders, taking account of 
the criteria referred to in Article 26 and in accordance with Article 27, on the same 
grounds  as  those  referred  to  in  paragraph  1  of  this  Article  and,  taking  into  account 
any new elements, for renewable periods corresponding to the foreseeable duration of 
the serious threat and not exceeding six months. 

4.  The  total  period  during  which  border  control  is  reintroduced  at  internal  borders, 
including any prolongation provided for under paragraph 3 of this Article, shall not 
exceed one year.  
In  the  exceptional  cases  referred  to  in  Article  27a,  the  total  period  may  be  further 
extended by a maximum length of two years in accordance with that Article.  
Where  there  are  exceptional  circumstances  as  referred  to  in  Article  29,  the  total 
period  may  be  extended  by  a  maximum  length  of  two  years,  in  accordance  with 
paragraph 1 of that Article." 

(2) 

Article 27 is amended as follows: 

(i) In paragraph 1, a new letter (aa) is added as follows: 

"(aa) a risk assessment assessing how long the identified threat is expected to persist 
and  which  sections  of  the  internal  borders  are  affected,  demonstrating  that  the 
prolongation  of  border  control  is  a  last  resort  measure  and  explaining  how  border 
control  would  help  address  the  identified  threat.  Where  border  control  has  already 
been  reintroduced  for  more  than  six  months,  the  risk  assessment  shall  also  explain 
how  the  previous  reintroduction  of  border  control  has  contributed  to  remedying  the 
identified threat. 
The risk assessment shall also contain a detailed report of the coordination which took 
place between the Member State concerned and the Member State or Member States 
with which it shares internal borders at which border control has been performed. 
The Commission shall share the risk assessment with the European Border and Coast 
Guard Agency and Europol, as appropriate." 
(ii) In paragraph 1, letter (e) is replaced as follows: 
"(e)  where  appropriate,  the  measures  to  be  taken  by  the  other  Member  States  as 
agreed  prior  to  the  temporary  reintroduction  of  border  control  at  internal  borders 
concerned." 
 (iii) The last sentence in paragraph 1 is replaced by the following: 

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"Where  necessary,  the  Commission  may  request  additional  information  from  the 
Member  State(s)  concerned,  including  on  the  cooperation  with  the  Member  States 
affected by the planned prolongation of border control at internal borders as well as 
additional information needed to assess whether this is a last resort measure." 

(iv) Paragraph 4 is replaced by the following: 

"4. Following notification by a Member State under paragraph 1 and with a view to 
consultation provided for in paragraph 5, the Commission or any other Member State 
may, without prejudice to Article 72 TFEU, issue an opinion. 
Where the Commission has concerns as regards the necessity or proportionality of the 
planned reintroduction of border control at internal borders or where it considers that 
a consultation on some aspects of the notification would be appropriate, it shall issue 
an opinion to that effect.  
Where  border  control  at  internal  borders  has  already  been  reintroduced  for  six 
months, the Commission shall issue an opinion. 

(v) Paragraph 5 is replaced by the following: 

"The  information  referred  to  in  paragraph  1  and  any  Commission  or  Member  State 
opinion  referred  to  in  paragraph  4  shall  be  the  subject  of  a  consultation  led  by  the 
Commission. Where appropriate, the consultation shall include joint meetings between 
the Member State planning to reintroduce border control at internal borders, the other 
Member  States,  especially  those  directly  affected  by  such  measures  and  the  relevant 
Agencies. The proportionality of the intended measures, the identified threat to public 
policy  or  internal  security  as  well  as  the  ways  of  ensuring  implementation  of  the 
mutual cooperation between the Member States shall be examined. The Member State 
planning  to reintroduce  or  prolong border  control  at  internal  borders  shall  take  the 
utmost account of the results of such consultation when carrying out border controls.

(3) 

A new Article 27a is added: 

Specific procedure where the serious threat to public policy or internal security exceeds 
one year 

"1. In exceptional cases, where the Member State is confronted with the same serious 
threat  to  public  policy  or  internal  security  beyond  the  period  referred  to  in  Article 
25(4)  first  sentence,  and  where  commensurate  exceptional  national  measures  are 
also  taken  within  the  territory  to  address  this  threat,  the  border  control  as 
temporarily  reintroduced  to  respond  to  that  threat  may  be  further  prolonged  in 
accordance with this Article. 

2. At the latest six weeks before the expiry of the period referred to in Article 25(4) 
first  sentence,  the  Member  State  shall  notify  the  other  Member  States  and  the 
Commission  that  it  seeks  a  further  prolongation  in  accordance  with  the  specific 
procedure  laid  down  in  this  Article.  The  notification  shall  contain  the  information 
required in Article 27(1)(a) to (e). Article 27 paragraphs 2 and 3 shall apply. 

3. The Commission shall issue an opinion. 

4.  The  Council,  taking  due  account  of  the  opinion  of  the  Commission,  may 
recommend  that  the  Member  State  decide  to  further  prolong  border  control  at 
internal borders for a period of up to six months. That period may be prolonged, no 
more  than  three  times,  for  a  further  period  of  up  to  six  months.  In  its 

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recommendation,  the  Council  shall  at  least  indicate  the  information  referred  to  in 
Article  27(1) (a) to (e).  Where  appropriate,  it  shall  determine  the  conditions  for 
cooperation between the Member States concerned." 

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

Article 2 

This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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