Proposal for a COUNCIL RECOMMENDATION amending Council Recommendation (EU) 2020/1632 as regards a coordinated approach to facilitate safe travel during the COVID-19 pandemic in the Schengen area
Date: 2021-11-25
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Schengen Agreement, area of freedom, security and justice, border control, coronavirus disease, disease prevention, epidemic, free movement of workers, internal border of the EU, public health, traveller

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 25.11.2021  COM(2021) 755 final 2021/0398 (NLE)  Proposal for a COUNCIL RECOMMENDATION amending Council Recommendation (EU) 2020/1632 as regards a coordinated approach to facilitate safe travel during the COVID-19 pandemic in the Schengen area (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The Union shall constitute an area of freedom, security and justice, in which the absence of 
internal  border  controls  for  persons  shall  be  ensured.  Under  the  Schengen  acquis,  internal 
borders  may  be  crossed  at  any  point  without  a  border  check  being  carried  out  on  persons, 
irrespective of their nationality. This includes third country nationals lawfully residing in the 
EU and third country nationals who have legally entered the territory of a Member State and 
who may move freely within the territories of all other Member States during no more than 90 
days in any 180-day period. 

In  response  to  the  outbreak  of  the  COVID-19  pandemic,  the  Member  States  have  adopted 
various, and often diverging,  measures to  limit  the spread of the virus, some of which have 
had  an  impact  also  on  the  right  of  third  country-nationals  legally  staying  or  residing  in  the 
Union  to  travel  freely  between  the  territories  of  the  Member  States,  such  as  restrictions  on 
entry or requirements for cross-border travellers to undergo tests for SARS-CoV-2 infection. 
When  adopting  and  applying  restrictions  to  free  movement,  Member  States  are  under  an 
obligation  to  respect  principles  of  EU  law,  in  particular  proportionality  and  non-
discrimination. 

Unilateral  measures  in  this  area  have  caused  significant  disruptions  as  businesses,  citizens, 
residents  and  visitors  were  confronted  with  a  wide  array  of  diverging  and  rapidly  changing 
measures. This is particularly harmful in a situation where the European economy has already 
been significantly affected by the virus. Such divergence may also undermine public trust in 
health measures, in particular vaccination, which could in turn exacerbate the epidemiological 
situation. 

To  ensure  increased  coordination  among  Member  States,  on  13  October  2020  the  Council 
adopted, based on a proposal of the Commission, Council Recommendation (EU) 2020/1475 
on a coordinated approach to the restriction of free movement in response to the COVID-19 
pandemic1.  The  Council  Recommendation  established  a  coordinated  approach  on  the 
following  key  points:  the  application  of  common  criteria  and  thresholds  when  deciding 
whether  to  introduce  restrictions  to  free  movement,  a  mapping  of  the  risk  of  COVID-19 
transmission based on an agreed colour code, and a coordinated approach as to the measures, 
if any, which may appropriately be applied to persons moving between areas, depending on 
the  level  of  risk  of  transmission  in  those  areas.  This  Council  Recommendation  was  later 
updated in light of developments in the epidemiological situation2. 

In  parallel,  with  regard  to  third-country  nationals  legally  staying  or  residing  in  the  EU,  on 
30 October  2020,  the  Council  adopted  Recommendation  (EU)  2020/1632  on  a  coordinated 
approach to the restriction of free movement in response to the COVID-19 pandemic in the 
Schengen Area3. 

To  facilitate  safe  free  movement  during  the  COVID-19  pandemic,  the  European  Parliament 
and the Council adopted on 14 June 2021 Regulations (EU) 2021/953 and (EU) 2021/954 on 
the  EU  Digital  COVID  Certificate.  The  EU  Digital  COVID  Certificate  has  proved  to  be  a 

1 
2 

3 

OJ L 337, 14.10.2020, p. 3. 
Council  Recommendation  (EU)  2021/119  of  1  February  2021  amending  Recommendation  (EU) 
2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 
pandemic, OJ L 36 I, 2.2.2021, p. 1. 
OJ L 366, 4.11.2020, p. 25. 

EN 

1 

  EN 

                                                 
fundamental  tool  to  help  restoring  travel  within  the  Union4.  To  make  best  use  of  the  EU 
Digital COVID Certificate framework, the Council also amended, on the same day, Council 
Recommendation (EU) 2020/14755. According to the amended rules, vaccinated or recovered 
persons should be exempted from restrictions applied in line with the Recommendation. 

Since June 2021, the rollout  of the EU Digital COVID Certificate has progressed at a rapid 
pace. As of 13 October 2021, Member States have issued more than 591 million EU Digital 
COVID  Certificates,  made  up  of  437  million  vaccination  certificates,  144  million  test 
certificates,  and  10  million  certificates  of  recovery6.  The  EU  Digital  COVID  Certificate  is 
thus  a  widely  available  and  reliably  accepted  tool  to  facilitate  free  movement  during  the 
COVID-19  pandemic.  According  to  a  Eurobarometer  survey  published  in  September  2021, 
about  two-thirds (65%)  of respondents  agreed that  the EU Digital  COVID Certificate is  the 
safest means for free travel in Europe during the COVID-19 pandemic7. Almost all Member 
States also use the EU Digital COVID Certificate for domestic purposes. 

The  EU  Digital  COVID  Certificate  framework  is  not  only  used  successfully  by  the  EU 
Member States, the three non-EU European Economic Area countries8 and Switzerland9, but 
also by an increasing number of third countries10, with more third countries expected to join 
in the future. As a result, the EU Digital COVID Certificate framework is the only large-scale 
system operational internationally11. 

At the same time, the epidemiological situation within the Union, characterised by a high and 
increasing  overall  case  notification  rate,  remains  challenging,  justifying  the  maintenance  of 
measures aimed at protecting public health. The European Centre for Disease Prevention and 
Control (ECDC) recommends the further increase of COVID-19 vaccination coverage in  all 
eligible age groups, as well as the maintenance of non-pharmaceutical measures, such as the 

4 

5 

6 

7 

8 
9 

10 

11 

Regulation  (EU)  2021/953  of  the  European  Parliament  and  of  the  Council  of  14  June  2021  on  a 
framework  for  the  issuance,  verification  and  acceptance  of  interoperable  COVID-19  vaccination,  test 
and recovery certificates (EU Digital COVID Certificate) facilitate free movement during the COVID-
19 pandemic and  Regulation (EU) 2021/954 of the European Parliament and of the Council of 14 June 
2021  on  a  framework  for  the  issuance,  verification  and  acceptance  of  interoperable  COVID-19 
vaccination, test and recovery certificates (EU Digital COVID Certificate) with regard to third-country 
nationals legally staying or residing in the territories of Member States during the COVID-19 pandemic, 
OJ L 211, 15.6.2021, p. 24. 
Council Recommendation (EU) 2021/961 of 14 June 2021 amending Recommendation (EU) 2020/1475 
on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic, 
OJ L 213I , 16.6.2021, p. 1. 
Report from the Commission to the European Parliament and the Council pursuant to Article 16(1) of 
Regulation  (EU)  2021/953  of  the  European  Parliament  and  of  the  Council  on  a  framework  for  the 
issuance,  verification  and  acceptance  of  interoperable  COVID-19  vaccination,  test  and  recovery 
certificates  (EU  Digital  COVID  Certificate)  to  facilitate  free  movement  during  the  COVID-19 
pandemic (COM(2021) 649 final). 
Available  at:  https://www.europarl.europa.eu/at-your-service/files/be-heard/eurobarometer/2021/soteu-
flash-survey/soteu-2021-report-en.pdf 
Iceland, Liechtenstein and Norway. 
Union  citizens  and  Swiss  nationals  enjoy  reciprocal  rights  of  entry  and  residence  based  on  the 
Agreement  between  the  European  Community  and  its  Member  States,  of  the  one  part,  and  the  Swiss 
Confederation, of the other, on the free movement of persons (OJ L 114, 30.4.2002, p. 6). 
https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/safe-covid-19-vaccines-
europeans/eu-digital-covid-certificate_en#recognition-of-covid-certificates-from-third-non-eu-countries 
. 
COM(2021) 649 final. 

EN 

2 

  EN 

                                                 
use of face masks, improved ventilation in closed spaced and physical distancing measures, as 
major tools to reduce the further spread of the virus and its variants12. 

On 25 November 2021, the Commission adopted a proposal for a Council Recommendation 
on a coordinated approach to facilitate safe free movement during the COVID-19 pandemic 
and  replacing  Recommendation  (EU)  2020/147513.  In  it,  the  Commission  proposes  to  adapt 
the coordinated  approach in  the light  of two important  developments  with  an impact  on the 
epidemiological  situation.  First,  vaccine  uptake  has  increased  significantly,  and  second,  the 
rollout of the EU Digital COVID Certificate, also available to third country nationals legally 
staying or residing in the EU, has progressed at rapid pace. The rationale behind the proposal 
is  further  explained  in  the  Commission  proposal  for  a  Council  Recommendation  on  a 
coordinated  approach  to  facilitate  safe  free  movement  during  the  COVID-19  pandemic  and 
repealing Recommendation (EU) 2020/147514.  

As a result, and to ensure consistency, Council Recommendation (EU) 2020/1632 should be 
amended to refer to the new Recommendation, once adopted.  

• 

Consistency with existing policy provisions in the policy area 

This  recommendation  serves  to  implement  the  existing  provisions  related  to  restrictions  of 
travel within the Schengen area on grounds of public health. 

• 

Consistency with other Union policies 

This  recommendation  is  in  line  with  other  Union  policies,  including  those  regarding  the 
freedom  of  movement  of  Union  citizens,  the  protection  of  public  health,  the  absence  of 
internal border controls within the Schengen Area. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The Treaty on the  Functioning of the European  Union (TFEU),  and in  particular Article 77 
(2)(c) and (e) and Article 292. 

• 

Subsidiarity 

Article  292  TFEU  enables  the  Council  to  adopt  recommendations.  According  to  this 
provision,  the  Council  shall  act  on  a  proposal  from  the  Commission  in  all  cases  where  the 
Treaties provide that it shall adopt acts on a proposal from the Commission. 

This applies in the current situation, as a consistent approach is necessary to avoid disruptions 
caused  by  unilateral  and  not  sufficiently  coordinated  measures  restricting  travels  within  the 
Schengen  Area.  Article  77(1)(a)  TFEU  stipulates  that  the  Union  shall  constitute  an  area  of 
freedom,  security  and  justice,  in  which  the  absence  of  internal  border  controls  for  persons 
shall  be  ensured.  Under  the  Schengen  acquis,  internal  borders  may  be  crossed  at  any  point 
without  a  border  check  on  persons  being  carried  out,  irrespective  of  their  nationality.  This 
includes third country nationals lawfully residing in the EU and third country nationals who 
have  legally  entered  the  territory  of  a  Member  State,  who  may  travel  freely  within  the 
territories of all other Member States no more than 90 days in any 180-day period.  

In  addition,  Article  77(2)  (c)  and  (e)  (TFEU)  stipulate  that  the  conditions  under  which 
nationals  of  third  countries  shall  have  the  freedom  to  travel  within  the  Union  and  that  the 

12 

13 
14 

https://www.ecdc.europa.eu/sites/default/files/documents/covid-19-rapid-risk-assessment-16th-update-
september-2021.pdf  
COM(2021)749 final. 
COM(2021)749 final 

EN 

3 

  EN 

                                                 
absence of any controls on persons, whatever their nationality, when crossing internal borders 
shall  be  laid  out  by  European  Parliament  and  the  Council,  acting  in  accordance  with  the 
ordinary  legislative  procedure,  subject  to  the  limitations  and  conditions  laid  down  in  the 
Treaties and by the measures adopted to give effect to them. 

Pursuant to Article 168(6), the Council, on a proposal from the Commission, may also adopt 
recommendations for the purposes of ensuring a high level of human health protection in the 
definition and implementation of all Union policies and activities. 

• 

Proportionality 

The adoption of unilateral or uncoordinated measures is likely to lead to restrictions on travels 
within  the  Schengen  area  that  are  inconsistent  and  fragmented,  resulting  in  uncertainty  for 
third country nationals who have legally entered the territory of a Member State and who may 
travel  freely  within  the  territories  of  all  other  Member  States.  The  proposal  does  not  go 
beyond what is necessary and proportionate for achieving the intended objective. 

3. 

• 

n.a. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

The proposal takes into account the discussions held at regular intervals with Member States, 
the  information  available  on  the  evolving  epidemiological  situation,  and  relevant  available 
scientific evidence.  

Impact assessment 

Fundamental rights 

• 

n.a. 

• 

n.a. 

4. 

BUDGETARY IMPLICATIONS 

None. 

5. 

n.a. 

OTHER ELEMENTS 

EN 

4 

  EN 

2021/0398 (NLE) 

Proposal for a 

COUNCIL RECOMMENDATION 

amending Council Recommendation (EU) 2020/1632 as regards a coordinated approach 
to facilitate safe travel during the COVID-19 pandemic in the Schengen area 

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 77 (2)(c) and (e) and Article 292, first and second sentence thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In  accordance  with  Article  67  TFEU,  the  Union  shall  constitute  an  area  of  freedom, 
security and justice, in which the absence of internal border controls for persons shall 
be ensured. Under the Schengen acquis, internal borders may be crossed at any point 
without a border check on persons being carried out, irrespective of their nationality. 
This  includes  third  country  nationals  lawfully  residing  in  the  EU  and  third  country 
nationals who have legally entered the territory of a Member State and who may travel 
freely within the territories of all other Member States for up to 90 days in any 180-
day period. 

On 30 January 2020, the Director-General of the World Health Organization (WHO) 
declared a public health emergency of international concern over the global outbreak 
of  novel  coronavirus,  which  causes  Coronavirus  disease  2019  (COVID-19).  On 
11 March 2020, the WHO made the assessment that COVID-19 can be characterised 
as a pandemic. 

To limit the spread of the SARS-Cov-2 virus, the Member States have adopted various 
measures, some of which have had an impact on the right to reside and travel  freely 
within the territory of the Member States, including for third-country nationals legally 
staying  or  residing  on  a  Member  State  territory,  such  as  restrictions  on  entry  or 
requirements  for  cross-border  travellers  to  undergo  quarantine.  These  measures  have 
had  a  detrimental  and  disproportionate  impact  due  to  checks  on  persons,  whatever 
their nationality, when crossing internal borders within the Schengen area. 

On  13  October  2020,  on  a  proposal  from  the  Commission,  the  Council  adopted 
Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free 
movement  in  response  to  the  COVID-19  pandemic15.  That  recommendation  defines 
general  principles  and  common  criteria,  including  common  thresholds  when 
considering restrictions to free movement in response to the COVID-19 pandemic. It 
also  establishes  a  common  framework  as  regards  possible  measures  for  travellers 

15 
restriction of free movement in response to the COVID-19 pandemic (OJ L 337, 14.10.2020, p. 3). 

Council  Recommendation  (EU)  2020/1475  of  13  October  2020  on  a  coordinated  approach  to  the 

EN 

5 

  EN 

                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

coming from higher risk areas. It recommends to Member States to coordinate and to 
communicate to public when restrictive measures are adopted. 

Council  Recommendation  (EU)  2020/1632  recommends  that  the  general  principles, 
common criteria, common thresholds and common framework of measures, including 
in 
recommendations  on  coordination  and  communication  as 
Recommendation (EU) 2020/1475 should also be applied with respect to travel within 
the area without controls at internal borders. 

laid  down 

In order to take account of developments in the evolution of the COVID-19 pandemic 
since the adoption of Recommendation (EU) 2020/1475, the Council has, on the basis 
of  a  proposal  by 
that  Recommendation  with 
[Recommendation (EU) 2021/XXXX [number and date to be inserted by the OJ].  

the  Commission, 

replaced 

in  Recommendation 

In  order  to  ensure  that  the  common  criteria,  thresholds  and  framework  of  measures 
applied by Member States to  facilitate  safe travel  within the  area without controls  at 
internal borders during the COVID-19 pandemic remain up-to-date and fully aligned 
with  the  common  approach  intended  to  facilitate  the  freedom  of  movement  as  laid 
down 
in  Council 
(EU)  2021/XXXX], 
Recommendation  (EU)  2020/1632  to  Recommendation  (EU)  2020/1475  should  be 
replaced  by 
(EU)  2021/XXXX].This 
Recommendation constitutes a development of the provisions of the Schengen acquis 
in  which  Ireland  does  not  take  part,  in  accordance  with  Council  Decision 
2002/192/EC16; Ireland is therefore not taking part in its adoption and is not bound by 
it or subject to its application. 

[Recommendation 

reference 

reference 

the 

to 

a 

As regards Bulgaria, Croatia, Cyprus and Romania, this Recommendation constitutes 
a  development  of  the  Schengen  acquis  within,  respectively,  the  meaning  of  Article 
3(2)  of  the  2003  Act  of  Accession,  Article  4(2)  of  the  2005  Act  of  Accession  and 
Article 4(2) of the 2011 Act of Accession. 

As  regards  Iceland  and  Norway,  this  Recommendation  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 
development of the Schengen acquis which fall within the area referred to in Article 1, 
point C, of Council Decision 1999/437/EC17. 

(10)  As  regards  Switzerland,  this  Recommendation  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement between the 
European Union, the European Community and the Swiss Confederation on the Swiss 
Confederation's association with the implementation, application and development of 
the  Schengen  acquis  which  fall  within  the  area  referred  to  in  Article  1,  point  C,  of 
Decision  1999/437/EC18  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC19. 

16 

17 
18 
19 

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). 
OJ L 176, 10.7.1999, p. 36. 
OJ L 53, 27.2.2008, p. 52. 
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). 

EN 

6 

  EN 

                                                 
(11)  As  regards  Liechtenstein,  this  Recommendation  constitutes  a  development  of 
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  acquis  which  fall  within  the  area 
referred to  in  Article 1 point  C, of Decision 1999/437/EC20  read in  conjunction  with 
Article 3 of Decision 2011/350/EU21, 

HAS ADOPTED THIS RECOMMENDATION: 

Recommendation (EU) 2020/1632 is amended as follows: 

In  the  sole  recommendation,  “Council  Recommendation  (EU)  2020/1475”  is  replaced  by 
“Council Recommendation 2021/XXXX”. 

Done at Brussels, 

For the Council 
The President 

20 
21 

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. 

EN 

7 

  EN