COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders
Date: 2021-12-14
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Schengen Agreement, border control, external border of the EU, foreign national, illegal migration, internal border of the EU, migrant, residence permit, travel

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   EUROPEAN COMMISSION  Strasbourg, 14.12.2021  SWD(2021) 463 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT  Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders {COM(2021) 891 final} - {SEC(2021) 440 final} - {SWD(2021) 462 final}  
 
 
Impact assessment : Proposal to amend the Schengen Borders Code 

Executive Summary Sheet 

A. Need for action 

Why? What is the problem being addressed? 
Schengen  is  an  area  without  internal  border  controls  between  Member  States  where  persons  and  goods  can 
circulate freely. Europeans value Schengen, in particular the advantages it brings for trade and the absence of 
passport control when crossing internal borders, making travel easier. Schengen is crucial for the functioning of 
the Single Market. Its creation has brought significant social and economic benefits to Europeans and helped the 
cross-border regions to develop.  
Over  the  last  six  years,  Schengen  has  been  exposed,  successively,  to  a  number  of  challenges:  extraordinary 
migratory pressure in 2015, terrorist attacks and, most recently, COVID-19. In response, some Member States 
decided to reintroduce border checks at their internal borders. While at first such decisions responded to clearly 
identifiable events, now they often appear to have become a permanent precautionary measure. In some cases 
the decision on reintroduction of border checks has been taken as if it was a ‘first aid’ measure and not the last 
resort it should  be.  Moreover, Member States have applied measures that  were agreed in order to protect the 
external  borders  in  relation  to  COVID-19  in  an  incoherent  manner,  thus  undermining  the  trust  between  the 
Member States and impacting the credibility of the Schengen area vis-à-vis third countries. 
The Impact assessment does not look into the instrumentalization of irregular migration, which has manifested in 
the summer at the land borders with Belarus, i.e. after the work on this document has been completed. 

What is this initiative expected to achieve? 
In  response  to  the  identified  challenges,  the  Commission  has  adopted  on  2  June  the  ‘Schengen  Strategy’ 
combining  legislative  and  operational  initiatives  to  make  Schengen  stronger  and  more  resilient.  One  of  the 
deliverables  of  the  said  Strategy  is  the  modification  of  the  Schengen  Borders  Code,  with  a  view  to  provide 
solutions to ensure that persons and goods can move freely without unjustified or disproportionate hurdles within 
the Schengen area and that extraordinary measures related to threats to public health are uniformly applied at 
all external borders. 

What is the value added of action at the EU level? 
The  Schengen  area  presupposes  the  absence  of  checks  at  internal  borders  while  ensuring  a  high  level  of 
security, thanks to a variety of measures which should compensate for the absence of such checks. In order to 
preserve  the  Schengen  area,  the  conditions  on  the  use  of  such  checks  by  the  Member  States  in  exceptional 
situations as well as the use of compensatory measures must be determined at the EU level.  
Also the uniform application of measures at the external borders in response to a threat to public health requires 
EU action. It concerns trust between Member States, which is a precondition of Schengen. 

B. Solutions 

What  legislative  and  non-legislative  policy  options  have  been  considered?  Is  there  a  preferred 
choice or not? Why? 
Three comprehensive approaches addressing all identified problems have been envisaged:  
Option 1 - to adopt only soft law measures, together with the Schengen Strategy (soft law measures).  
Option 2  – to propose  a targeted amendment of the  Schengen Borders Code,  accompanied by some soft law 
measures (mixed option). In particular, a new procedure of contingency planning would be proposed concerning 
border  checks  at  internal  borders  being  reintroduced  in  response  to  threats  affecting  several  or  all  Member 
States  at  the  same  time.  The  guidance  and  recommendations  adopted  in  response  to  COVID-19  would 
contribute  to  ‘mitigating  measures’  which  would  need  to  be  taken  into  account  whenever  a  reintroduction  of 
border checks is inevitable. In order to limit the use of border checks as the most intrusive measure, the concept 
of the ‘measure of last resort’ already contained in the Schengen Borders Code would be developed to include a 
reference  to  measures  available  to  Member  States  to  compensate  for  the  absence  of  border  checks. 
Furthermore, the Commission would receive better tools to monitor why the Member States want to reintroduce 
border checks and how they carry them out. Finally, adopting an ‘entry ban’ to the EU in the case of a threat to 
public health would receive a solid legal basis, to ensure uniformity at the external borders. 
Option  3  -  is  more  ambitious  in  terms  of  amending  the  existing  rules.  It  would  require  the  decision  on 
reintroducing  controls  to  be  taken  at  EU  level,  with  approval  from  one  of  the  EU  institutions  or  would  simply 
remove the current possibility to reintroduce border checks at internal borders by unilateral decision of a Member 
State and impose using compensatory measures instead. 
Following a detailed assessment of the impact of all policy options and consultation of all stakeholders involved, 
Option 2 is the preferred policy option. This choice is based on the fact that this option scores, overall, best as 
regards effectiveness, efficiency and proportionality. It draws on lessons from the past and, at the same time, is 

 
 
 
sufficiently  ambitious.  It  respects  the  views  of  the  Member  States  concerning  the  role  of  border  checks  in 
addressing serious threats while at the same time respecting the legitimate expectations of EU citizens and other 
persons benefiting from the absence of border checks at internal borders.  

Who supports which option? 
All different categories of stakeholders (European Parliament, Member States, citizens, business and academia) 
see the need for measures to make Schengen stronger and more resilient. The support of Member States is split 
between Option 1 and Option 2. Option 2 is likely to receive also the support from the European Parliament and 
from  businesses  as  it  strikes  the  right  balance  between  the  necessary  level  of  ambition  and  the  necessary 
pragmatism, based on the experience made during the negotiations on the 2017 Commission proposal to amend 
the Schengen Borders Code. Option 3 is a logical consequence of the development of the Schengen area but 
has not received explicit support from any of the groups.  

C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, otherwise main ones)?  
The preferred policy option has the best chances to respond effectively to the identified problems. It provides the 
necessary tools to ensure the well-functioning of Schengen. In this sense, the range of potential impacts of this 
option  is  very  wide,  including  positive  economic  and  social  impacts.  However,  the  scope  of  these  impacts  will 
depend  ultimately  on  the  success  of  other  envisaged  initiatives,  in  particular  as  regards  the  reform  of  the 
Schengen  Evaluation  Mechanism  (to  be  also  presented  together  with  the  Schengen  Strategy),  as  well  as  the 
progress  in  implementing  the  already  adopted  and  the  newly  proposed  measures  at  the  external  borders  and 
within the territory, allowing for a better use of other compensatory measures, to ensure a high level of security 
in the Schengen area. 

By bringing more predictability to the management of crisis situations, the preferred option brings benefits to the 
EU citizens and residents when moving within the Schengen area for professional purposes, shopping or leisure. 
At  the  same  time  it  brings  economic  benefits  to  the  entire  Schengen  area  as  it  reduces  the  cost  caused  by 
internal border checks. It also explicitly recognises the interests of cross-border regions and as such may limit 
the impact, on these regions, of measures taken in crisis situations at the central level. Finally, it increases the 
credibility of the EU at the international level, by clarifying the application of the measures at the external borders 
that are adopted specifically to address threats to public health.  

What are the costs of the preferred option (if any, otherwise main ones)?  
None  of  the  options  is  expected  to  generate  direct  costs  for  the  economy  or  the  citizens  compared  to  the 
baseline scenario because all the options aim at restoring the Schengen area.  

The  preferred  option  has  the  best  chances  to  succeed  in  reaching  that  objective  and  thus  also  to  reduce  the 
costs currently incurred by those Member States carrying out border checks at their internal borders to ensure 
the  desired  level  of  security,  as  well  as  the  costs  for  those  Member  States  that  are  affected  by  these  checks. 
Some costs will be caused for national administrations in order to implement the preferred option, due to the new 
obligations  (risk  assessment,  regular  reporting)  included  in  the  preferred  policy  option  which  aim  at  making 
border checks a truly last resort measure. As regards measures at the external borders, some Member States 
particularly relying on foreign tourists may perceive them as potentially affecting their economy. However, given 
the overall positive impact of such measures on trust among the Member States, these potential costs would be 
counterbalanced by the benefits for the Schengen area as a whole. 

How will businesses, SMEs and micro-enterprises be affected? 

The  success  in  limiting  the  use  of  border  checks  at  internal  borders  and  restoring  trust  between  the  Member 
States  will  reduce  the  risk  of  obstacles  affecting  business,  in  particular  for  those  operating  cross-border.  The 
better predictability of measures applicable in a crisis situation should help in preventing long queues of trucks at 
the  borders  and  absenteeism  of  cross-border  workers,  whenever  a  reintroduction  of  border  checks  at  internal 
borders  is  inevitable.  The  preferred  option  does  not  generate  per  se  costs  for  the  carriers.  Any  possible  costs 
concerning  the  need  to  collect  API  data  will  result  from  a  new  legal  act,  still  to  be  proposed.  The  Schengen 
Borders Code will provide only an opening in this regard. The measures concerning the external borders will also 
simplify  the  procedures  which  carriers  have  to  apply  to  avoid  carriers’  liability,  which  currently  may  differ  from 
one Member State to another in view of the divergent application of travel restrictions.  

Will there be significant impacts on national budgets and administrations? 
The costs of police checks, police cooperation or use of new technologies which are promoted by the preferred 
option as an alternative to border checks at internal borders are difficult to calculate given that they concern the 
maintenance  of  law  and  order  which  are  under  the  sole  responsibility  of  the  Member  States.  Therefore,  the 
Commission does not have any data on this at its disposal. 

 
 
 
 
 
 
Will there be other significant impacts? 
The  possible  increased  use  of  compensatory  measures  such  as  police  checks  would  have  an  overall  positive 
impact  on  fundamental  rights  as  most  travellers  would  again  benefit  from  the  absence  of  checks  at  internal 
borders. In order to limit the risk of any possible abuses, for example as regards racial profiling underpinning the 
police  checks  in  the  border  areas  (already  prohibited  under  current  rules),  it  will  be  necessary  to  increase  the 
monitoring  measure,  e.g.  in  the  context  of  Schengen  Evaluations.  The  impacts  of  the  increased  use  of  new 
technologies should be addressed as the current EU rules on data protection will continue to apply. 

D. Follow up 

When will the policy be reviewed?  
The proposed option addresses exceptional situations. Therefore, a regular measurement of the indicators is not 
possible. However, based on the Roadmap that should accompany the  Schengen Strategy it may be assumed 
that [within a year] from the adoption of the new rules the long-lasting border checks at internal borders should 
be lifted and the only border checks in place at that time will be carried out for a limited period of time under the 
current rules, or based on the new contingency planning procedure.