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  COM(2021) 891 final 2021/0428 (COD)  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  {SEC(2021) 440 final} - {SWD(2021) 462 final} - {SWD(2021) 463 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  area  without  controls  at  internal  borders  (the  “Schengen  Area”)  is  one  of  the  biggest 
achievements  of  European  integration.  In  the  Communication  ‘A  Strategy  towards  a  fully 
functioning and resilient Schengen area1 (“Schengen Strategy”), the Commission stressed that the 
foundations  of  Schengen  are  part  of  Europe’s  DNA.  The  Schengen  area  comprises  an  area 
where European Union citizens and non-EU citizens legally staying in the territory, as well as 
goods and services, can travel  without being subject to internal border controls. Schengen is 
an  essential  element  of  the  area  of  freedom,  security  and  justice  and  a  key  element  for  the 
functioning  of  the  Single  Market.  Its  creation  has  brought  significant  social  and  economic 
benefits to European society.  

However,  in  recent  years,  it  has  been  repeatedly  put  to  the  test  by  a  series  of  crises  and 
challenges.  The  unprecedented  2015  refugee  crisis  exposed  shortcomings  in  the  Union’s 
management  of  the  external  borders  and  showed  that  the  migration  system  was  not  well-
designed  to  meet  those  challenges,  with  the  consequence  that  a  number  of  Member  States 
reintroduced  internal  border  controls.  Internal  border  controls  were  also  reintroduced  in 
response to  the persistent  terrorist threat  following  a spate of attacks on  European soil.  The 
COVID-19 pandemic has also presented an unprecedented challenge and has placed a major 
strain on the Schengen area, leading many more Member States to reintroduce internal border 
controls,  at  times  jeopardising  the  proper  functioning  of  the  Single  Market.  All  this  has 
undermined the climate of trust needed to sustain an area free from internal border controls. 

For these reasons, the Commission announced that it would aim to complete the range of tools 
necessary to ensure the proper functioning of the Schengen area in order to put the ecosystem 
of rules back into balance and restore and reinforce mutual trust between Member States. One 
such measure to make the Schengen area stronger and more resilient is a new proposal for an 
amendment to Regulation (EU) No 2016/3992 (“Schengen Borders Code”). This proposal is a 
key  deliverable  from  the  Roadmap  for  a  New  Pact  on  Migration  and  Asylum.  All  the 
solutions  proposed  in  the  New  Pact  on  Migration  and  Asylum  will  contribute  to  effective 
migration management, closer cooperation, responsibility-sharing among Member States and 
a binding solidarity framework, thereby reinforcing the Schengen area. 

A well-functioning Schengen area requires rules to be applied in a uniform way, both at the 
external and internal borders. It relies on trust among the Member States, efficient controls of 
the external borders and alternative measures on the territory of the Member States in order to 
assure  a  high  level  of  security  within  the  Schengen  area,  in  the  absence  of  internal  border 
controls. 

While  the  framework  set  out  by  the  Schengen  Borders  Code  provides  tools  to  tackle 
challenges such as the ones experienced over the last years, there is a room for improvement 
of  specific  aspects  concerning  in  particular  the  capacity  to  respond  in  a  uniform  manner  to 

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Communication from the Commission to the European Parliament and the Council, "A strategy towards 
a fully functioning and resilient Schengen area", COM(2021)277 final, 2.6.2021. 
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), OJ L 
77, 23.3.2016, p. 1. 

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major  public  health 
from 
instrumentalisation  of  migrants  as  well  as  the  means  to  respond,  within  the  territory,  to 
terrorism or unauthorised movements. 

the  capacity 

resulting 

respond 

threats, 

threats 

to 

to 

In view of the emerging challenges to the Schengen area, a number of targeted changes to the 
current rules set  out  in  the Schengen  Borders Code  are  required  in  relation to  both  external 
and internal borders as well as in relation to the powers exercised within the Member States’ 
territories, without putting into question the division of responsibilities between the Union and 
the Member States.  

This proposal must be seen in the context of ongoing intiatives to improve Schengen’s overall 
governance.  Drawing  on  the  work  of  the  Schengen  Forum3  established  in  2020,  the 
Commission will adopt in early 2022 a ‘State of Schengen Report’ summarising the situation 
as regards the absence of internal border controls, the results of Schengen evaluations, and the 
state  of  implementation  of  recommendations.  The  Commission  will  integrate  into  these 
reports  a  ‘State  of  Schengen  Scoreboard’  to  assess  in  an  interconnected  manner  the 
implementation  of  the  Schengen  acquis  in  the  different  policy  fields  and  better  support 
Member States in addressing any challenges. The Commission has also proposed to revise the 
Schengen  Evaluation  and  Monitoring  Mechanism  to  make  it  more  efficient,  strategic  and 
better  equipped  to  tackle  new  realities  and  challenges.  The  revision  will  increase  the 
Mechanism’s  capacity  to  facilitate  political  dialogue  on  the  state  of  Schengen,  focusing  on 
those  areas  that  have  the  potential  to  jeopardise  the  functioning  of  the  Schengen  area  as  a 
whole. 

External Borders 

Schengen’s  existence  presupposes  a  high  degree  of  trust  in  a  robust  management  of  the 
external  borders.  Based  on  the  experiences  covering  the  period  until  late  2021,  the 
management of external borders should be reinforced as regards the following two aspects: 

 

 Health related challenges 

The COVID-19 crisis has shown that the current rules are not sufficient to respond to crisis 
situations  linked  to  diseases  with  epidemiological  potential.  The  global  character  of 
COVID-19  required  ad  hoc  measures  at  the  external  borders  to  slow  down  transmission 
across borders. In March 2020, the Commission proposed a coordinated decision on applying 
travel restrictions on non-essential travel from third countries into the Schengen area. This led 
to the adoption of a Council Recommendation in June 20204, with the objective of facilitating 
a  unified  approach  when  it  comes  to  restricting  access  to  the  European  Union  of  travellers 
coming  from  countries  with  a  highly  problematic  epidemiological  situation.  However, 
although Member States agreed among themselves on a list of third countries for which the 
restriction  on  non-essential  travel  could  be  lifted,  they  have  applied  the  Recommendation 
referred to above in very different ways5. Only some have been applying the list of countries 

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Under  the  New  Pact  on  Migration  and  Asylum,  the  Commission  announced  the  establishment  of  a 
dedicated Schengen Forum, involving the relevant national authorities such as Ministries of Interior and 
(border) police at national and regional level in order to stimulate more concrete cooperation and more 
trust among Member States to support the well-functioning of Schengen. The 1st Schengen Forum took 
place on 30 November 2020, the second Forum on 17 May 2021. 
Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the 
EU and the possible lifting of such restriction, 30.6.2020. 
See Impact Assessment Section 2.1.2. 

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in full, while others decided to lift the restrictions only to some or even none of the countries 
on the list. Other Member States lifted the restrictions to third countries that were not on the 
list at all, thus undermining the desired unified approach. A new procedure is needed to codify 
a consistent practice and avoid the currently experienced discrepancies. 

 

Challenges related to the instrumentalisation of migrants  

in 

responding 

the  Commission  Communication  on 

As  stated 
to  state-sponsored 
instrumentalisation  of  migrants  at  the  EU  external  border6,  in  the  renewed  EU  action  plan 
against migrant smuggling (2021-2025) adopted by the Commission on 29 September 20217, 
as  well  as  in  the  Commission  proposal  for  a  Regulation  on  measures  against  transport 
operators  that  facilitate  or  engage  in  trafficking  in  persons  or  smuggling  of  migrants  in 
relation  to  illegal  entry  into  the  territory  of  the  European  Union8,  a  highly  worrying 
phenomenon  observed  is  the  increasing  role  of  State  actors  in  artificially  creating  and 
facilitating  irregular  migration,  using  migratory  flows  as  a  tool  for  political  purposes  to 
destabilise the European Union or its Member States.  

As  expressed  in  the  October  2021  European  Council  conclusions9,  the  EU  and  the  Member 
States are committed to giving a response to this increasing role of State actors in facilitating 
irregular migration and  using human beings to  create pressure at  the EU’s external  borders. 
The European Council invited the Commission to propose any necessary changes to the EU’s 
legal framework to address the issue of instrumentalisation. To this end, it is first necessary to 
define what is to be understood by ‘instrumentalisation’. Moreover, there is a need to clarify 
what measures Member States can take under the Schengen Borders Code in order to protect 
the EU’s common external borders effectively against the instrumentalisation of migrants for 
political  purposes.  In  parallel,  the  Commission  is  proposing  additional  measures  under  the 
asylum  and  return  acquis  to  further  clarify  how  Member  States  can  and  should  respond  in 
situations  of instrumentalisation while ensuring full protection  of the rights  of migrants that 
are instrumentalised, including the right to asylum and protection against non-refoulement.  

In  line  with  the  Schengen  Borders  Code,  ‘Border  control  is  in  the  interest  not  only  of  the 
Member State at whose external borders it is carried out but of all Member States which have 
abolished internal border control. Border control should help to combat illegal immigration 
and  trafficking  in  human  beings  and  to  prevent  any  threat  to  the  Member  States’  internal 
security,  public  policy,  public  health  and  international  relations’10.  It  is  therefore  clear  that 
the Member States with external Schengen borders carry a double responsibility: vis-à-vis all 
persons  benefiting  from  the  possibility  to  travel  without  being  subject  to  internal  border 
controls and vis-à-vis their own citizens and business. The Schengen Borders Code contains 
general  rules  applicable  at  the  border  crossing  points  (Article  5)  and  on  border  surveillance 
(Article  13)  to  enable  Member  States  to  deliver  on  border  management  objectives  as 
mentioned  above.  However,  it  is  necessary  to  reinforce  those  rules  to  recognise  the 
responsibility  of  Member  States  with  external  Schengen  borders  and  reply  to  the  new 
challenges created by the phenomenon of instrumentalisation.  

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JOIN(2021) 32 final. 
COM(2021) 591 final. 
COM(2021) 753 final. 
Special  meeting  of  the  European  Council  of  24  and  25  May  2021  –  Conclusions,  Council  document 
EUCO 5/21 of 25 May 2021. 
See Recital 6 of Regulation (EU) 2016/399 (Schengen Borders Code). 

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Measures at internal borders and within the territory 

The  very  essence  of  the  Schengen  project  is  the  absence  of  controls  at  internal  borders 
allowing all persons legally staying in the Union to fully benefit from the possibility to travel 
without  being  subject  to  internal  border  controls.  Based  on  the  experiences  covering  the 
period until autumn 2021, the following aspects must be reviewed and reinforced in order to 
preserve the Schengen area: 

 

Response to challenges that affect a majority of Member States 

Although reintroducing border checks can be a legitimate measure to address  serious threats 
to  internal  security  and  public  policy,  in  particular  when  an  urgent  response  is  needed  (e.g. 
terrorist attacks), the geographical scope and duration of these border checks may render the 
movement of persons and the free circulation of goods more difficult. Even if, per se, internal 
border checks are without prejudice to the right of free movement, in practice the absence of 
such  checks  facilitates  the  movement  of  persons.  The  impact  of  reintroduced  border  checks 
has been particularly visible at the internal land borders, affecting the multiple economic and 
social ties in cross-border regions with the 150 million persons living in these regions11 and 
some  3.5  million  people  crossing  internal  Schengen-area  borders  every  day12.  In  2020,  the 
numerous  reintroductions  of  border  checks  at  internal  borders  intended  to  help  contain  the 
spread  of  COVID-19  often  affected  the  local  capacities  to  ensure  essential  services  on  both 
sides of the border. A lack of coordination of national measures in response to the COVID-19 
pandemic further impacted the transport sector by limiting cross-border transport operations, 
often  amplifying  the  effects  of  the  initial  shock  and  adding  to  the  disruption  of  the  supply 
chains.  A  new  procedure  is  needed  to  ensure  a  more  coordinated  approach  in  case  of  crisis 
situations affecting a majority of Member States, whilst fully respecting the sovereign right of 
Member States to reintroduce border controls.  

Building  on  the  wide  range  of  guidelines  and  recommendations  adopted  for  the  COVID‑19 
pandemic,  such  as  the  ‘Green  Lanes’  system13,  the  Commission  will  also  improve  the 
contingency  planning  for  Schengen.  For  this  reason,  it  will  codify  the  pertinent  mitigating 
measures in the Practical Handbook for Border Guards to become a natural point of reference 
for border guards in a crisis situation. 

 

Better use of alternative measures  

The COVID-19 pandemic, the migratory crisis  of 2015 as well as increased terrorist threats 
have put the Schengen area to the test in recent years14. In response to these challenges, some 

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Strategy 

Schengen 

Around  150  million  Europeans  live  in  border  regions,  amounting  to  30%  of  the  EU  population.  The 
cross-border regions cover 40% of the EU territory and produce 30% of the EU's GDP. Therefore, any 
changes as regards  the possibility  to cross the borders  without controls are socially and  economically 
significant. 
and 
of 
See 
https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/621815/EPRS_BRI(2018)621815_EN.pdf 
2020/C 96 I/01 and COM(2020) 685 final. 
The  fast  spread  of  the  COVID-19  pandemic  caused  between  March  and  October  2020  an  excess  of 
deaths amounting to almost 300,000 in the EU, compared with the same period in 2016  – 2019. (See: 
Eurostat “Excess mortality in 2020: especially high in spring and autumn”, 20 January 2021). 
The  terrorist  threat,  while  always  present,  has  become  very  prominent  in  Europe  since  the  attack  on 
Charlie Hebdo in January 2015, and the growth of the so-called Islamic State in Syria. 
In 2015, 1,255,600 first time  asylum  seekers applied for international protection in the  EU, a number 
more  than  double  that  of  the  previous  year  (see  Eurostat  Newsrelease  “Asylum  in  the  EU  Member 
States Record number of over 1.2 million first time asylum seekers registered in 2015”). To compare, in 

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June 

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Member States decided to reintroduce border checks at some or all of their internal borders15. 
While, at first, such decisions responded to clearly identifiable events, and for a certain period 
of time were underpinned by Council Recommendations16, they now appear to have become a 
permanent precautionary measure.  

Long-lasting  internal  border  controls  have  revealed  the  limits  of  the  current  tools  that  the 
Union  has  to  assess  the  necessity  and  proportionality  of  prolonged  controls.  Therefore,  the 
rules defining internal border controls as a measure of last resort should be reinforced.  

In  the  same  vein,  the  long-lasting  internal  border  controls  drew  attention  to  the  limited  use 
Member  States  make  of  alternative  measures  which,  in  many  instances  can  be  sufficient  to 
ensure  a  high  level  of  security  without  the  need  of  restoring  border  controls  at  internal 
borders.  

This  concerns  in  particular  the  exercise  of  police  powers.  The  Commission’s  2017 
Recommendation on police checks and cross-border police cooperation17 encouraged Member 
States  to  make  better  use  of  their  police  powers  and  to  give  precedence  to  police  checks 
before deciding on the temporary reintroduction of internal border controls. Over the past four 
years,  a  number  of  Member  States  have  intensified  police  checks  in  the  border  areas  in  the 
context of the increased threats to public policy or internal security. Some of those cases set 
examples  of  good  practice  in  addressing  persistent,  increased  threats  to  public  policy  or 
internal security. Indeed, such checks can often prove equally or more efficient than internal 
border controls, notably as they are more flexible than static border controls at specific border 
crossing points and can be adapted more easily to evolving risks.  In order to ensure that the 
potential  of  these  measures  is  fully  used,  a  Member  State  that  considers  prolonging  the 
reintroduction of border control should first assess whether the border control can be replaced 
by such alternative measures. In addition, the experience related to the COVID-19 pandemic 
made it clear that also other, not typically police-related public powers (e.g. checks related to 
public health) may make the reintroduction of internal border controls  unnecessary. For this 
reason,  the list  of  alternative  measures  that should not  be considered  as  equating to  internal 
border controls should be reviewed.  

Improved  police  cooperation  can  expand  the  set  of  alternatives  to  internal  border  controls 
available  to  Member  States.  To  this  end,  the  Commission  adopted  on  8  December  2021 
legislative proposals for an EU Police Cooperation Code. The Code will provide a coherent 
EU  legal  framework  to  ensure  that  law  enforcement  authorities  have  adequate  access  to 
information held by other Member States when they need it to fight crime and terrorism.  

Finally,  the  persistence  of  internal  border  controls  in  relation  to  unauthorised  movements 
justifies  modifications  to  enable  Member  States  to  better  address  such  challenges  without 
needing to resort to internal border controls. 

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2018 there were 699,000 applications lodged in the EU, including 631,000 first time applications (see: 
European Commission “Statistics on migration to Europe”). 
Since  September  2015,  border  checks  at  the  internal  borders  have  been  reintroduced  more  than 
250 times. 
Serious deficiencies identified at the Greek external border in 2016 led to the adoption of four Council 
Recommendations that, based on Article 29, called on five Member States (Austria, Germany, Sweden, 
Denmark and Norway) to temporarily reintroduce border checks at their internal borders between May 
2016 and November 2017. 
Commission  Recommendation  (EU)  2017/820  of  12  May  2017  on  proportionate  police  checks  and 
police cooperation in the Schengen area. 

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* 

In view of the above, there is an urgent need to address problems affecting the external and 
internal borders of the Schengen area related to the following: 

a)  Measures  at  the  external  borders  to  address  threats  related  to  the  major  public 
health  threats  such  as  pandemics  and  instances  of  instrumentalisation  of 
migrants; 

b) Conditions for the reintroduction of border checks at internal borders and use of 
other  measures  to  their  full  potential  to  ensure  a  sufficiently  high  level  of 
security without needing to resort to internal border controls. 

Specific objectives and main elements of the proposal 

The proposal has the following specific objectives: 

a)  Uniform  application  of  measures  at  the  external  borders  in  case  of  a  threat  to 

public health. 

The proposal aims to establish a new mechanism  which should allow for a timely adoption, 
by the Council, of a binding instrument setting out temporary travel restrictions at the external 
borders  in  these  circumstances.  Thanks  to  this  mechanism,  travel  restrictions  will  apply 
uniformly in all Member States for as long as the threat to public health persists in the Union. 
The proposal determines in a comprehensive manner all necessary elements of an instrument 
to be adopted by the Council in an implementing act. Accordingly, such an instrument should 
specify any categories of persons exempted from travel restrictions, even in situations where 
they  travel  for  non-essential  reasons,  and/or,  on  the  basis  of  objective  indicators,  any 
geographical areas or third countries from which travel may be subject to specific measures, 
e.g. travel restrictions. Furthermore, it should define any additional conditions to be imposed 
on travellers to make travel safe. In line with obligations under Union and international law, 
Union citizens and third-country nationals who, under agreements between the Union and its 
Member States, on the one hand, and those third countries, on the other hand, enjoy rights of 
free  movement  equivalent  to  those  of  Union  citizens  and  their  repective  family  members 
should always be permitted to enter the Union. Residents should always be permitted to return 
to  the  Union.  Moreover,  the  instrument  should  define  a  minimum  list  of  categories  of 
travelers  that  are  considered  necessary  in  connection  with  essential  functions  or  needs  and 
should therefore not be covered by measures under this instrument. This list should reflect in 
particular international obligations of the Union and its Member States to allow travel, while 
it will be left  to the individual Council decisions to define additional categories of essential 
travel,  if  needed,  depending  on  the  specific  threat.  The  instrument  could  also  set  up  an 
emergency brake mechanism, allowing to take relevant measures in case the epidemiological 
situation dramatically worsens in one or more geographical areas. 

b) Response to instrumentalisation of migrants at external borders 

The proposal aims to address the instrumentalisation of migrants, where a third country actor 
is using human beings to destabilise the Union or its Member States. The proposal defines in 
Article  2  what  should  be  understood  by  ‘instrumentalisation’.  Moreover,  the  proposed 
modification  of  Article  5  and  Article  13  should  clarify  what  measures  are  available  at  the 
border crossing points and in the context of border surveillance to prevent and react to illegal 
border crossings when Member States of first entry are confronted with such pressure from a 
third country. In addition, a new proposal on exceptional asylum and return procedures aims 

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to ensure coherence with this approach by introducing provisions that allow Member States to 
take  the  measures  neeeded  to  manage  in  a  humane,  orderly  and  dignified  manner,  fully 
respectful  of  fundamental  rights  and  humanitarian  principles,  the  arrival  of  persons  being 
instrumentalised by a third country. 

c)  Creation  of  a  contingency  planning  for  Schengen  in  the  situation  of  a  threat 

affecting a majority of Member States at the same time 

The proposal aims to create a new mechanism allowing for a European response to problems 
affecting  a  majority  of  Member  States  at  the  same  time  and  thus  putting  the  overall 
functioning  of  the  Schengen  area  at  risk.  This  new  mechanism  should  complement  the 
existing mechanism for serious persistent deficiencies at the external borders, as currently set 
out  in  Article  29  of  the  Schengen  Borders  Code.  It  should  fully  respect  the  right  of  the 
Member States to take the necessary actions when confronted with an immediate threat and 
offer the Council the possibility to authorise, based on a proposal from the Commission, the 
reintroduction  of  internal  borders  controls  in  some  or  all  Member  States  affected  by  the 
identified threat, thus providing a coherent framework for the use of internal border controls 
by the Member States and defining appropriate mitigating measures. Upon proposals from the 
Commission, such an authorisation may be prolonged for further periods of up to six months 
each,  as  long  as  the  threat  is  found  to  persist.  Where  the  Commission  considers  that  an 
authorisation  to  reintroduce  internal  border  controls  would  not  be  appropriate,  it  should, 
instead, adopt a recommendation specifying the measures that seem more appropriate to deal 
with  the  threat  than  internal  border  controls  or  measures  that  may  complement  the  internal 
border controls. 

d) Procedural  safeguards  in  case  of  unilateral  reintroductions  of    internal  border 

controls 

In order to ensure that internal border controls  remain a measure of last resort, the proposal 
clarifies  and  expands  the  list  of  elements  that  must  be  assessed  by  a  Member  State  when 
taking  the  decision  on  temporary  reintroduction  of  border  controls.  These  elements  would 
include  the  appropriateness  of  the  measure  of  reintroducing  border  controls  at  an  internal 
border  and  the  likely  impact  of  such  a  measure  on  movement  of  persons  within  the  area 
without internal border control and on the cross-border regions. Moreover, where a Member 
State  decides  to  prolong  internal  border  controls  in  response  to  foreseeable  threats,  such  an 
assessment  should  also  include  the  assessment  of  the  appropriateness  and  the  use  of 
alternative  measures  such  as  proportionate  checks  carried  out  in  the  context  of  the  lawful 
exercise of public powers by competent authorities in the border region, the use of the refusal 
procedure  for  third  country  nationals  crossing  the  internal  border  and  police  cooperation  as 
provided  for  under  Union  law.  In  addition,  prolongations  concerning  foreseeable  threats 
exceeding 6 months should also include a risk assessment. As today, the Commission or any 
other Member States may at any time adopt an opinion on the necessity and proportionality of 
reintroduced internal border controls. Wherever internal controls have been in place for a total 
of  18  months,  the  Commission  will  be  required  to  issue  an  opinion  on  their  proportionality 
and necessity and launch a consultation process with the Member States.  

In  order  to  take  account  of  the  experience  that  certain  threats  can  persist  for  a  considerable 
amount of time, the possibility to prolong border control in these cases is extended to a total 
maximum period of two years. However, the proposal recognises that Member States may see 
the  need  to  maintain  internal  border  controls  beyond  this  timeframe.  In  such  cases,  the 
Member  State  concerned  should  inform  the  Commission,  while  substantiating  in  its  new 

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notification  the  maintenance  of  the  threat,  including  with  a  risk  assessment  and  taking  into 
account the opinion of the Commission issued in case of border controls lasting 18 months. In 
such a case, the Commission shall issue a follow-up opinion.  

Moreover, in order to enable a post factum analysis, Member States should remain obliged to 
submit  a  report  on  the  reintroduction  of  border  control  at  internal  borders  to  the  European 
Parliament,  the  Council  and  the  Commission,  after  having  lifted  the  controls.  Furthermore, 
where  border  controls  are  maintained  beyond  a  period  six  months,  such  a  report  should  be 
submitted  after  twelve  months,  and  every  year  thereafter  for  as  long  as  the  controls  are 
maintained.  

e)  Application  of  mitigating  measures  and  specific  safeguards  for  cross-border 

regions in cases where internal border controls are reintroduced 

The  proposal  also  provides  that  safeguards  should  always  be  applied,  to  limit  the  negative 
impact  of  the  temporary  reintroduction  of  border  checks  at  internal  borders,  should  this 
reintroduction  be  inevitable,  in  particular  to  limit  their  impact  on  the  functioning  of  cross-
border  regions,  transport  and,  thus,  on  the  Single  Market.  Examples  for  the  mitigating 
measures which should be complied with during reintroduced border controls are in particular 
those  set  out  in  the  guidelines  and  recommendations  developed  in  2020  in  relation  to  the 
COVID-19 crisis.  

f) Increased use of alternative measures to address the identified threats instead of 

internal border controls 

The  proposal  aims  to  ensure  a  high  level  of  security  within  the  Schengen  area  in  a 
proportionate manner. To this end, the proposal clarifies the possibility for Member States to 
make more extensive use of checks other than border controls in border areas. These checks 
should  not  necessarily  be  carried  out  by  police  authorities,  but  could  involve  any  other 
authorities competent under national law18 to exercise public powers. In all cases, competent 
authorites must respect the existing safeguards developed by European Court of Justice case-
law19 for the exercise of police powers, in particular, by providing the necessary framework 
for the power granted to those authorities to carry out identity checks, including to guide the 
discretion which those authorities enjoy in the practical application of that power, in order to 
ensure that these checks do not become equivalent to border controls. In the provision of such 
guidance, Member States should also ensure that discretion exericed by competent authorities 
is  carried  out  in  full  respect  of  fundamental  rights,  in  particular  the  prohibition  of 
discrimination. 

In order to provide further means to Member States to use alternative measures to address the 
problem  of  unauthorised  movements  of  irregular  migrants,  the  proposal  introduces  a 
possibility  of  transferring  irregular  migrants  if  there  is  a  clear  indication  that  the  person 
apprehended at the internal borders as part of cross-border police operational cooperation has 
just  arrived  from  that  other  Member  State  (for  instance,  registration  in  Eurodac  by  another 
Member  State  or  recent  bills  issued  in  the  other  Member  State).  In  view  of  the  initiative 
concerning  the  cross-border  police  cooperation  put  forward  on  8  December  2021,  this  new 
procedure should encourage the use of joint patrols as a tool allowing this simplified transfer 
of persons apprehended at the internal borders  to be applied. The proposal also provides for 

18 

19 

During the COVID-19 pandemic, Member States could have carried out health-related checks in border 
areas, instead of reintroducing internal border controls. 
See  Judgment  of  the  Court  of  Justice  of  22  June  2010,  Melki  and  Abdeli,  joined  cases C-188/10  and 
C-189/10. 

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lifting of the ‘stand-still’ clause currently applicable to the existing bilateral agreements and 
arrangements between Member States on this issue, as referred to in Article 6(3) of the Return 
Directive20  and  determining  the  conditions  under  which  irregular  migrants  can  currently  be 
sent  back  once  apprehended  in  a  situation  of  illegal  stay  in  a  Member  State.  The  proposal 
contains  a  targeted  modification  to  Article  6(3)  of  the  Return  Directive  that  would  allow 
Member  States  to  put  in  place  more  effective  bilateral  readmission  agreements  and 
arrangements,  able  to  address  the  challenges  related  to  unauthorised  movements.  The 
modification  would  equally  require  Member  States  to  notify  such  agreements  and 
arrangements  to  the  Commission.  Moreover,  the  Commission  is  ready  to  prepare  a  model 
bilateral  agreement  for  the  main  clauses  of  such  agreements,  based  on  a  review  of  existing 
agreements, in order to support the Member States in this task of creating an efficient tool for 
managing unauthorised movements.  

The proposal also removes obstacles for a more extensive use of monitoring and surveillance 
technologies,  and  clarifies  that  the  Schengen  Borders  Code  does  not  prevent  the  use  of 
passenger data such as Passenger Name Records or Advanced Passenger Information on intra-
Schengen connections21, in case this would be allowed by the applicable law.  

• 

Consistency with existing policy provisions in the policy area 

As mentioned above, this initiative is in line with the actions set out in the Schengen Strategy.  

The  proposal,  with  revamped  reporting  obligations  on  the  Commission  as  regards  the 
functoning  of  the  Schengen  area,  contributes  to  the  principles  of  the  Schengen  governance, 
aiming  to  increase  political  dialogue,  monitoring  and  enforcement.  It  therefore  forms  an 
integral component of the Schengen governance structure, as set out in the Schengen Strategy 
of 2 June 2021. This reporting obligation will in future be fulfilled through the yearly State of 
Schengen  Report  that  will  also  contain  the  report  to  be  provided  under  Article  20  of  the 
Regulation on the Schengen Evaluation Mechanism22. 

The Schengen Evaluation and Monitoring Mechanism provides for a peer-to-peer instrument 
supporting  the  building  of  mutual  trust  among  Member  States  and  ensuring  correct  and 
efficient  implementation  of  the  Schengen  legal  framework.  Deficiencies  and  lack  of 
implementation in one Member State can affect all Member States and subsequently put the 
Schengen  area  at  risk.  This  makes  it  necessary  to  have  a  mechanism  fit  for  purpose 
guaranteeing  a  stronger  and  resilient  Schengen.  To  achieve  this  the  Commission  adopted  a 
reform  of  the  Schengen  Evaluation  and  Monitoring  mechanism  on  2  June  202123,  which  is 
currently subject to discussions in the Council. 

20 

21 

22 

23 

Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals, OJ L 348, 24.12.2008, p. 98.  
As  announced  in  the  Schengen  Strategy  of  2  June  (COM(2021)277),  the  Commission  is  preparing  a 
legislative  proposal  to  expand  the  use  of  advance  passenger  information  (API)  to  cover  also  intra-
Schengen  flights.  Currently,  by  contrast  to  the  PNR,  it  is  currently  only  collected  systematically  for 
flights entering the Union from third countries. 
Council Regulation (EU) No  1053/2013 of 7 October 2013 establishing an evaluation and monitoring 
mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive 
Committee  of  16  September  1998  setting  up  a  Standing  Committee  on  the  evaluation  and 
implementation of Schengen, OJ L 295, 6.11.2013, p. 27. 
Proposal for a Council Regulation on the establishment and operation of an evaluation and monitoring 
mechanism  to  verify  the  application  of  the  Schengen  acquis  and  repealing  Regulation  (EU)  No 
1053/2013, COM(2021)278 final, 02.06.2021. 

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The State of Schengen Report should be discussed annually in the Schengen Forum that the 
Commission  established  to  promote  a  regular  and  structured  political  dialogue  among  the 
actors  involved  in  ensuring  the  proper  functioning  of  the  Schengen  area.  These  discussions 
should  involve  the  relevant  national  authorities  at  national  and  regional  level  in  order  to 
stimulate  more  concrete  cooperation  and  more  trust  among  Member  States  to  support  the 
well-functioning of Schengen. The first Schengen Forum took place on 30 November 2020, 
the  second  Forum  on  17  May  2021,  with  the  participation  of  Members  of  the  European 
Parliament and Ministers for Home Affairs.  

In accordance with Article 33 of the Schengen Borders Code, the State of Schengen  Report 
will be addressed to the European Parliament and to the Council. Building on the discussions 
in  the  Schengen  Forum,  these  institutions  should  therefore  consider  the  conclusions  to  be 
drawn from the report. 

The proposal complements the rules concerning controls at external border as a prerequisite of 
the area without controls at internal borders. It contributes to the effective implementation of 
European integrated border management (EIBM) by the European Border and Coast Guard. 
The  proposal  will  also  be  reflected  in  the  upcoming  Multiannual  Strategic  Policy  Cycle 
aiming to set out the strategic framework to steer European integrated border management by 
eliminating  loopholes  between  border  protection,  security,  return,  migration,  while  ensuring 
the  protection  of  fundamental  rights.  As  announced  in  the  Schengen  Strategy,  a  policy 
document to form the basis for a consultation of the European Parliament and the Council on 
EIBM will be adopted by the Commission at the beginning of 2022.  

The new procedure at the external border to be applied in a situation of an infectious disease 
with  epidemic  potential  as  detected  by  the  European  Centre  for  Disease  Prevention  and 
Control  or  the  Commission  through  the  European  Health  Emergency  preparedness  and 
Response Authority (HERA), is expected to better prepare the Union for any future pandemic 
and as such will serve one of the purposes of border controls, i.e. to prevent threats to public 
health24. It will fill in the gap once the existing Council Recommendation (EU) 2020/912 on 
the temporary restriction on non-essential travel into the EU and the possible lifting of such 
restriction25  ceases  to  apply.  To  recall,  Council  Recommendation  2020/912  was  adopted  as 
part of the coordinated response to the COVID-19 pandemic26, meaning that it should cease to 
apply  by  the  time  this  Regulation  is  adopted.  The  new  procedure  should  fully  take  into 
account the procedures established by the future Regulation of the European Parliament and 
of the Council on serious cross-border threats to health27, notably in case of recognition of a 
public  health  emergency,  and  the  revised  mandate  of  the  European  Centre  for  Disease 
Control. 

As  regards  measures  aiming  to  support  the  Member  States  in  their  efforts  to  face 
instrumentalisation  of  migrants  by  third  countries,  the  proposal  builds  on  the  existing  rules 
concerning  border  surveillance  and  border  controls  at  external  borders  as  set  out  in  the 
Schengen Borders Code.  

24 
25 

26 
27 

See Recital 6 of the Schengen Borders Code. 
Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the 
EU and the possible lifting of such restriction, 30.6.2020. 
Agreement among the Heads of State or Government of the European Union, 26 March 2020. 
COM(2020)727. 

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The proposal responds to a number of Resolutions of the European Parliament28 and builds on 
the Recommendations of the Commission adopted in 2017 with a view to paving the way to 
lifting  the  long-lasting  internal  border  controls:  the  Recommendation  of  12  May  2017  on 
proportionate  use  of  police  checks  and  police  cooperation  in  the  Schengen  area  and  the 
Recommendation of 3 October 2017 on the implementation of the provisions of the Schengen 
Borders  Code  on  a  temporary  reintroduction  of  border  control  at  internal  borders  in  the 
Schengen area.  

The proposal replaces the Commission’s proposal for an amendment of the Schengen Borders 
Code  as  adopted  by  the  Commission  in  201729  which  is  withdrawn.  As  explained  in  the 
Schengen  Strategy30,  despite  agreement  by  stakeholders  on  the  need  to  address  the  issue  of 
internal border controls, the 2017 initiative did not receive sufficient support for negotiations 
to be successfully pursued by the colegislators and should therefore be withdrawn.  

The  current  proposal  takes  up  procedural  safeguards  that  had  found  general  backing  in  the 
2017  negotiations  such  as  the  obligation  to  submit  the  risk  assessment  together  with  the 
notification  of  internal  border  controls  in  case  of  foreseeable  threats.  Alongside  with 
strengthened safeguards, the proposal simplifies and streamlines the time limits under which 
controls  at  the  internal  borders  may  be  reintroduced  or  prolonged.  In  particular,  Member 
States will have the possibility to prolong such controls to a total of up to two years. Beyond 
that period, border controls may be exceptionally prolonged but require a new notification  by 
the  Member  State,  substantiating  the  maintenance  of  the  threat,  taking  into  account  the 
Commission’s opinion issued after 18 months. Furthermore, the current proposal provides for 
the  intervention  of  the  Council  where  a  threat  has  become  a  genuinely  European  issue, 
affecting a majority of Member States at the same time. It therefore strikes the right balance 
between, on the one hand, the sovereign right of Member States to introduce internal border 
controls and the need to take account of the long-lasting nature of certain threats and, on the 
other hand, the need to ensure that such reintroductions are done in a coordinated manner with 
the right safeguards.  

• 

Consistency with other Union policies 

The proposal for an amendment of the Schengen Borders Code is included in the Commission 
Work Programme 202131.  

The  proposal  is  without  prejudice  to  the  right  of  freedom  of  movement  of  Union  citizens 
within the meaning of Article 20(1) TFEU and third-country nationals who, under agreements 
between the Union and its Member States, on the one hand, and those third countries, on the 

28 

29 

30 
31 

E.g. European Parliament resolution of 24 November 2020 on the Schengen system and measures taken 
during the COVID-19 crisis (2020/2801(RSP)), European Parliament resolution of 19 June 2020 on the 
situation  in  the  Schengen  area  following  the  COVID‑19  outbreak  (2020/2640(RSP)),  European 
Parliament resolution of 17 September 2020 on COVID-19: EU coordination of health assessments and 
risk  classification,  and  the  consequences  for  Schengen  and  the  single  market  (2020/2780(RSP)), 
European  Parliament  resolution  of  30  May  2018  on  the  annual  report  on  the  functioning  of  the 
Schengen area (2017/2256(INI)). 
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, COM(2017)571, 27.9.2017. 
COM(2021)277. 
COM(2020) 690 final, Commission Work Programme 2021, A Union of vitality in a world of fragility, 
https://eur-lex.europa.eu/resource.html?uri=cellar%3A91ce5c0f-12b6-11eb-9a54-
p.6, 
01aa75ed71a1.0001.02/DOC_1&format=PDF.  

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11 

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other hand, enjoy rights of free movement equivalent to those of Union citizens, as well as of 
their  respective  family  members.  This  concerns  both  the  proposed  measures  at  external 
borders, where the right to return home for this category of persons is guaranteed even during 
a restriction for non-essential travel to the Union, and at internal borders, where the need to 
assess the impact of measures adopted at internal borders on the movement of persons within 
the area  without internal border control is reinforced.  This  proposal  does not  in  any  respect 
affect the rights of EU citizens under Directive 2004/38/EC32.  

The  proposal  contributes  to  enhancing  security  within  the  Schengen  area  by  clarifying  the 
measures  which are at  the disposal  of the Member States to  ensure a high level  of security, 
despite  the  abolition  of  internal  border  controls.  The  proposal  follows  the  adoption  on 
8 December  2021  of  a  police  cooperation  package,  comprised  of  a  proposal  for  a  Council 
Recommendation on operational police cooperation, a proposal for a Directive on information 
exchange  between  law  enforcement  authorities  of  Member  States  and  for  a  Regulation  on 
automated data exchange for police cooperation (‘Prüm II’). The objective of these proposals 
is  to  reinforce  the  two  most  important  aspects  of  police  cooperation:  information  exchange 
and operational police cooperation. This  will enhance the alternative measures that Member 
States  have  at  their  disposal  and  therefore  limit  the  need  for  reintroducing  internal  border 
controls. 

The  new  procedure  put  forward  for  the  transfer  of  irregular  migrants  apprehended  at  the 
internal  borders  as  part  of  cross-border  police  cooperation  and  the  proposed  targeted 
modification to Article 6(3) of the Return Directive serve the purpose of preserving the area 
without  internal  border  controls.  As  such,  the  proposal  remains  without  prejudice  to  the 
Return Directive and does not affect its dual nature, i.e. an instrument to fight against illegal 
immigration  while  supporting  the  proper  functioning  of  an  area  without  internal  border 
checks.  While  fully  respecting  the  fundamental  rights  of  such  persons,  the  objective  of  an 
effective removal of an irregular migrant from the Schengen area to a third country prevails, 
and  the  Member  States  should  always  endevour  to  return  such  irregular  migrants  to  a  third 
country, instead of transfering the person concerned to another Member State. Moreover, the 
new  derogation  will  only  allow  migrants  to  be  sent  back  to  the  Member  State  from  where 
their  irregular  border  crossing  has  been  detected.  Any  further  returning  to  other  Member 
States  will  continue  to  be  governed  by  existing  and  future  bilateral  agreements  and 
arrangements between Member States.  

The  proposal  fully  respects  the  asylum  acquis,  both  where  it  proposes  measures  at  the 
external  borders  related  to  the  instrumentalisation  of  migrants  and  where  it  proposes  a  new 
procedure  for  addressing  unauthorised  movements  of  irregular  migrants.  In  pursuing  the 
objectives  on  this  new  procedure,  Member  States  will  be  able  to  rely  on  the    proposal 
amending  the  Eurodac  Regulation  as  well  as  the  Screening  proposal,  in  full  respect  of 
fundamental rights and  specific safeguards provided for in those instruments.  

The  proposal  takes  into  account  EU  transport  policy,  and  in  particular  the  transport  Green 
Lanes  introduced  to  preserve  the  supply  chains  and  to  ease  movement  of  transport  workers 

32 

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  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC (OJ L 158, 30.4.2004, p. 77). 

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during the COVID-19 pandemic. The forthcoming contingency plan for transport will provide 
further details regarding the handling of crisis situations in the transport sector. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Article 77(2) (b) and (e) and 79(2)(c) 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), specifically Title II concerning the rules applicable 
at external borders and Title III concerning the rules application at internal borders.  

The proposal also amends the Return Directive 2008/115/EC of the European Parliament and 
of the Council of 16 December 2008 on common standards and procedures in Member States 
for  returning  illegally  staying  third-country  nationals,  as  regards  the  derogations  from  the 
obligation to issue a return decision to a third-country national. 

• 

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 objectives of this proposal cannot be sufficiently achieved by the Member States acting 
alone,  and  can  be  better  achieved  at  the  level  of  the  Union.  This  is  because  they  concern 
checks  on  persons  at  the  external  borders  which  are  a  precondition  of  the  area  without 
controls at internal borders. Furthermore, the integrity of the Schengen area and the need to 
ensure  uniform  conditions  for  exercising  the  right  to  free  movement  require  a  coherent 
approach across the  entire Schengen area to  trust-building measures  at  the external  borders, 
including on restrictions for non-essential travel to the EU and response to instrumentalisation 
of migrants by the authorities of third countries. 

The absence of any controls at internal borders is guaranteed by the Treaty in Article 77(2)(e) 
TFEU.  While  Member  States  retain  the  right  to  take  actions  in  order  to  respond  to  internal 
security and public policy, and thus to exercise the right guaranteed in Article 72 TFEU even 
if  this  means  reintroducing  internal  border  controls,  the  rules  for  such  temporary 
reintroductions have been set out in the Schengen Borders Code in order to ensure that they 
are applied only under strict conditions. Therefore, any changes concerning these conditions 
for reintroduction of border controls at internal borders require EU legislation.  

The  objective  of  establishing  a  contingency  planning  for  Schengen,  including  specific 
measures at internal borders to address a threat affecting a majority of Member States at the 
same time and to  mitigate the negative impacts  of border controls  where they  have become 
inevitable,  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 

According to the principle of proportionality laid down in Article 5(4) TEU, there is a need to 
match  the  nature  and  intensity  of  a  given  measure  to  the  identified  problem.  All  problems 
addressed  in  this  legislative  initiative  call,  in  one  way  or  another,  for  EU-level  legislative 
action enabling Member States to tackle these problems effectively. 

The  proposed  measures  to  be  applied  at  the  external  borders  to  address  a  threat  to  public 
health  take  inspiration  from  the  currently  applicable  framework,  as  set  out  in  Council 
Recommendation  (EU)  2020/912.  In  order  to  guarantee  their  proportionality,  the  proposed 
procedure  sets  the  framework  allowing  to  determine,  where  needed,  the  conditions  under 
which restrictions could be introduced, their scope and safeguards, in particular with regard to 
EU citizens and other persons benefiting from freedom of movement under Union law and/or 
third country nationals having an essential function. 

The  proposed  measures  concerning  the  instrumentalisaton  of  migrants  complement  the 
existing provisions on checks at the border crossing points and on border surveillance. They 
fully take into account the competences of the Member States as regards border management. 
They also fully reflect the competences of the European Border and Coast Guard Agency as 
regards the support of the Member States in their obligation to protect external borders. 

The modifications concerning internal borders improve the balance between the checks which 
can be carried out in the border areas in the context of the exercise of public powers and the 
reintroduction of internal  border controls.  The proposed modifications clarify the conditions 
under which Member States can carry out checks in the border areas without a risk that they 
can be confused with border controls. They propose a new procedure applicable to irregular 
migrants  apprehended  in  the  internal  border  areas  to  address  the  unauthorised  movements 
without needing to resort to internal border controls. As such, it will complement the existing 
framework  enabling  the  abolition  of  internal  border  controls.  The  applicability  of  the  new 
procedure  is  limited  to  apprehensions  at  internal  borders,  when  irregular  migrants  are 
apprehended as part of cross-border police operational cooperation, in particular during joint 
patrols,  given  that  the  joint  patrols  will  ensure  that  both  Member  States  involved  have  the 
same  level  of  information  as  concerns  the  apprehension  of  the  irregular  migrant.  In  full 
respect  of  subsidiarity  and  proportionality  principles,  the  proposal  leaves  the  possibility  to 
determine their bilateral cooperation on the matters related to the unauthorised movements to 
the Member States, while respecting the objectives of the EU’s return policy, as set out in the 
Return  Directive.  The  proposal  removes  the  stand-still  clause  for  the  existing  bilateral 
agreements  or arrangements in  the sense of Article 6(3) of the Return Directive, in  order to 
allow the Member States to update their content. The Member States retain full liberty in this 
regard,  but  should  notify  the  Commission  about  any  such  new/modified  agreements  and 
arrangements.  The  Commission  stands  ready  to  assist  the  Member  States  by  developping  a 
model bilateral agreement based on the clauses considered as the best practices for addressing 
the unauthorised movements at present, to be annexed to the Return Handbook.  

The proposal  fully recognises  Member States’  sovereign right  to  reintroduce internal  border 
controls,  in  particular  when  urgent  reaction  is  needed,  including  in  the  situation  of  a  threat 
putting at  risk the overall  functioning of  the Schengen area  and thus  calling for a European 
response. Finally, it reinforces the safeguards against discretionary prolongations of internal 
border controls on the account of simple persistence of a threat by increasing the notification 
requirements  over  the  course  of  time,  in  particular  as  regards  the  appropriateness  of 
alternative measures.  

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The proposal maintains the approach that internal border controls may only be carried out as 
long  as  necessary,  i.e.  they  should  be  lifted  as  soon  as  other  measures  can  address  the 
identified threat. Accordingly, the responsibility for complying with the existing time-limits is 
a  shared  task  of  the  Member  States  and  the  Commission.  In  particular,  the  Member  States 
should  provide  a  description  of  identified  threats  justifying  the  reintroduction  of  internal 
border  controls,  submitting,  in  case  of  a  prolongation  of  border  controls  to  address  a 
foreseeable threat, also a risk assessment. They should also assess on a case-by case basis if 
the  persisting  threat  is  still  the  same  threat  justifying  a  prolongation  of  border  controls  or 
whether it is a new threat, justifying a new notification. Both in the situation of reintroduction 
and subsequent prolongations of border controls, the Member States should be able to provide 
an analysis demonstrating the necessity and proportionality of such controls, and in particular 
how the internal border controls are suitable to address the threat  as well as their impact on 
the movement of persons in the area without internal border controls and the functioning of 
cross-border regions. In case of any prolongation concerning foreseeable threats, the Member 
State should demonstrate the need to maintain internal border controls by assessing whether 
the  objectives  pursued  by  such  prolongation  could  be  attained  by  alternative  measures. 
Moreover, the prolongations concerning foreseeable threats exceeding six monts should also 
include a  risk assessment. The Commission and any Member State can signal, by means of 
an opinion on the necessity and proportionality, their concerns on the use of border controls. 
In case of border controls exceeding 18 months, such an opinion by the Commission should 
be compulsory. The reintroduction of border controls may be discussed in the framework of 
consultations carried out by the Commission at its own initative or at the request of a Member 
State, with a view to clarifying the relevance of the intended reintroduction of border controls, 
the  appropriateness  of  alternative  measures,  as  well  as  mutual  cooperation  with  regard  to 
border controls and mitigating measures. As is currently the case, such a consultation would 
remain compulsory in a situation where an opinion has been issued by the Commission or a 
Member State. Finally, in case of threats with a European dimension, the Commission and the 
Council take the responsibility that the internal border controls are maintained only as long as 
necessary, without setting any absolute time-limits. 

• 

Choice of the instrument 

The proposal concerns the amendment of a Regulation and consequential amendment of the 
Return  Directive.  As  the  main  elements  of  the  proposal  concern  the  existing  provisions  of 
Title  II  of  the  Schengen  Borders  Code  relating  to  external  border  controls  and  Title  III 
concerning  the  temporary  reintroduction  of  border  control  at  internal  borders  of  this 
Regulation, no other instrument than a Regulation would be appropriate. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable. 

• 

Stakeholder consultations 

As  outlined  in  Annex  2  to  the  Impact  Assessment  accompanying  this  proposal,  a 
stakeholders’  consultation  took  place  between  November  2020  and  February  2021  and 
encompassed, primarily, targeted stakeholders by  way of the Schengen  Forum and thematic 
workshops  divided  according  to  the  topic  and  stakeholders  involved.  It  included  Member 
States, European Parliament, carriers and NGOs.  

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In addition, a public consultation was carried out. It was launched on 19 January 2021, with 
the deadline for contributions set at 16 March 2021.  

The Commission also published the Inception Impact Assessment on its website33 for four 
weeks, and received feedback from France, Croatia, Ukraine and one anonymous sender. 

• 

Collection and use of expertise 

The proposal builds on the evidence collected in the DG REGIO study ‘The effects of COVID-
19 induced border closures on cross-border regions - An empirical report covering the period 
March to June 2020’34 and the ‘20 case studies covering the period March to June 2020’35. 

The  Commission  also  relied  on  the  studies  on  the  costs  of  non-Schengen,  prepared  by  the 
European  Parliament36,  notifications  of  the  Member  States  concerning  the  temporary 
reintroduction  of  border  checks  at  internal  borders  and  the  reactions  from  the  public 
manifested in correspondence sent to the Commission.  

• 

Impact assessment 

In  line  with  its  ‘Better  Regulation’  policy,  the  Commission  conducted  an  Impact 
Assessment.37 The Impact Assessment evaluated three policy options: 

Option 1 - Soft law. This option considered soft law measures drawing on the lessons learnt 
from the COVID-19 crisis and others to encourage the use of alternative measures instead of 
border checks at internal borders. As such, it followed the earlier approach of the Commission 
in the 2016 Communication ‘Back to Schengen – a Roadmap’38 and the Recommendation on 
proportionate police checks and police cooperation in the Schengen area39. Under this option, 
soft  law  measures  on  a  better  coordination  of  measures  at  the  external  borders  in  a  crisis 
situation have also been considered.  

The specific objectives were expected to be achieved through a Communication on the future 
of  Schengen  (the  so-called  Schengen  Strategy)  and,  possibly,  updates  of  the  relevant 
Recommendations  (in  particular  of  the  2017  Recommendation  on  proportionate  police 
checks). 

Option 2 - Mixed option (targeted amendment of the Schengen Borders Code combined 
with  soft  law).  This  option  aimed  to  address  the  criticism  from  citizens,  the  European 
Parliament, as well as Member States of the current long-lasting checks at internal borders. It 

33 

34 

35 

36 

37 
38 

39 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12827-Amendment-of-the-
Schengen-Borders-Code. 
https://op.europa.eu/en/publication-detail/-/publication/46250564-669a-11eb-aeb5-
01aa75ed71a1/language-en/format-PDF/source-search. 
https://op.europa.eu/en/publication-detail/-/publication/bf14de68-6698-11eb-aeb5-
01aa75ed71a1/language-en. 
Directorate-General  for  Internal  Policies  Policy  Department  A:  Economic  and  Scientific  Policy, 
European Parliamentary Research Service European Added Value Unit, PE 578.974-May 2016: “Cost 
of non-Schengen: the impact of border controls within Schengen on the Single Market”, requested by 
the  European  Parliament's  Committee  on 
and  Consumer  Protection, 
https://www.europarl.europa.eu/RegData/etudes/STUD/2016/578974/IPOL_STU(2016)578974_EN.pdf 
See the accompanying Staff Working Document.  
Communication  from  the  Commission  to  the  European  Parliament,  the  European  Council  and  the 
Council, Back to Schengen - A Roadmap, COM(2016)120 final, 4.3.2016. 
Commission  Recommendation  (EU)  2017/820  of  12  May  2017  on  proportionate  police  checks  and 
police cooperation in the Schengen area, C(2017)3349, OJ L 122, 13.5.2017, p. 79. 

Internal  Market 

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would  also  respond  to  the  call  from  academia.  This  option  was  expected  to  allow  ensuring 
that persons can move freely in the Schengen area without unnecessary hurdles, thanks to the 
limitation  of  the  instances  where  border  checks  at  internal  borders  are  reintroduced.  As 
regards  measures  at  the  external  borders  this  option  proposed,  in  view  of  the  guidance  and 
recommendations adopted in response to COVID-19, to develop ‘mitigating measures’ which 
would need to be taken into account whenever a reintroduction of border checks is inevitable. 
Moreover, this option implied adopting a clear legal basis for imposing and lifting an ‘entry 
ban’  to  the  EU  in  the  case  of  a  threat  to  public  health,  to  ensure  uniformity  at  the  external 
borders in the situation of a threat to public health. The current proposal embodies the ideas 
developed under this option. 

Option  3  -  Mixed  option  2  (more  fundamental  change  of  the  Schengen  Borders  Code, 
combined  with  soft  law  elements).  This  option  looked  at  the  borderless  Schengen  area  as 
one integral space that must not be fragmented by decisions of individual Member States. In 
view  of  that,  it  proposed  to  address  the  identified  challenges  exclusively  at  EU  level,  by 
providing  that  any  decision  on  a  reintroduction  of  border  checks  at  internal  borders  would 
require  the  prior  approval  of  one  of  the  EU  institutions  or  removing  the  possibility  of  a 
reintroduction of border checks at internal borders altogether. 

As regards the application of measures at the external borders in case of public health threats, 
the proposed remedies would not differ from option 2 (new restrictions on non-essential travel 
into the EU applicable in the situation of threat to public health). 

Outcome of the Impact Assessment: Based on the findings of the Impact Assessment report, 
Option 2 (mixed approach) is considered to be the preferred option. This choice reflects the 
best cumulative score of this option as regards effectiveness, efficiency and proportionality. It 
draws on the 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 also the legitimate expectations of EU citizens and 
other persons benefiting from the absence of border checks at internal borders as to preserving 
the  Schengen  area  which  facilitates  the  movement  of  persons  and  goods  because  of  the 
absence of internal border controls. 

As  regards  the  economic  impacts,  notably  the  new  mechanism  of  contingency  planning, 
bringing  the  response  to  crisis  situations  affecting  several  or  all  Member  States  to  the  EU 
level  and  reinforcing  the  use  of  alternative  measures  as  well  as  mitigating  measures,  where 
appropriate, is likely to facilitate the exercice of movement and/or limiting negative impacts 
of internal border controls on the Single Market. As such, this option may be instrumental in 
limiting  the  negative  economic  impact  of  border  checks  at  internal  borders  and  thus  the 
economic benefits of this option could be significant. Also the possibility of adopting an EU-
wide  travel  restriction  for  non-essential  travel  applicable  at  the  external  borders  in  the 
situation  of  a  public  health  threat  could  contribute  to  this  objective  by  eliminating  a  likely 
ground for the reintroduction of border checks at internal borders. 

This  option  also  assures  positive  social  impacts,  thanks  to  the  contingency  planning  for 
Schengen and the reinforced concepts of the ‘last resort measure’, which are expected to limit 
the use of border checks at internal borders.  

No measurable environmental impacts are linked with the preferred option.  

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On  the  other  hand,  this  option  may  entail  relatively  the  biggest  direct  impact  on  the 
administration.  This  is  due  to  maintaining  the  possibility  to  reintroduce  temporarily  border 
checks  at  internal  borders  and  adding  new  obligations,  such  as  a  risk  assessment,  a 
standardised  notification  concerning  the  reintroduction  of  border  checks  at  internal  borders 
and  an  obligation  to  report  regularly  on  these.  However,  as  the  measures  proposed  in  this 
option  should  achieve  an  overall  reduction  in  the  use  of  border  checks,  the  additional 
administrative burden should be limited. 

No  specific  analysis  was  conducted  concerning  the  proposed  measures  to  counter 
instrumentalisation  of  migrants,  as  the  proposal,  in  this  respect,  is  designed  to  clarify  the 
applicable rules.  

On  19  April  2021,  the  Commission  submitted  the  Impact  Assessment  to  the  Regulatory 
Scrutiny  Board  (RSB).  The  RSB  gave  a  positive  opinion  with  comments.  These  comments 
related to (i) the lack of sufficient evidence on the strengths and weaknesses of the current key 
measures  of  the  Schengen  Borders  Code,  (ii)  the  vagueness  of  the  description  of  the  policy 
options and the implementation  choice, and (iii) the insufficiently developed analysis of the 
impacts.  To  address  these  comments,  the  Commission  in  particular  further  expanded  the 
quantitative data and the information on the views of the stakeholders throughout the report to 
strengthen the qualitative arguments  raised  concerning the benefits  of lifting internal  border 
controls.  It  set  out  more  clearly  the  shortcomings  of  the  process  in  2020  from  a  Schengen 
perspective,  with  the  EU  Integrated  Political  Crisis  Response  (IPCR)  focusing  first  on  the 
health aspects before turning to other aspects like border control, underlined that even though 
border  controls  can  be  an  efficient  tool,  the  phasing  out  creates  significant  problems  and 
showed  more  in  detail  that  alternative  measures  are  less  costly  than  border  controls  while 
often  achieving  the  same  result.  In  addition,  the  Commission  beefed  up  the  various  options 
envisaged.  Finally,  additional  in-depth  information  was  included  on  the  objective  of  the 
previous  2017  proposal,  the  lessons  learnt  from  its  negotiations  and  on  the  new  perspective 
brought by the COVID-19 crisis. Further information on how the RSB recommendations are 
reflected  in  the  Impact  Assessment  report  can  be  found  in  Annex  I,  point  3,  of  the  Impact 
assessment. 

• 

Regulatory fitness and simplification 

According to the Commission’s Regulatory Fitness and Performance Programme (REFIT), all 
initiatives  with  the  objective  to  change  existing  EU  legislation  should  aim  to  simplify  and 
deliver stated policy objectives more efficiently (i.e. reducing unnecessary regulatory costs).  

The  analysis  of  impacts  suggests  that  the  preferred  option  should  help  to  optimise  the 
allocation  of  resources  in  case  of  crisis  and  to  limit  the  costs  of  reintroduction  of  border 
checks at internal borders. However, it should be noted that the new obligation concerning the 
risk  assessment,  the  new  template  for  notifications  of  reintroductions  and  reporting 
obligations,  as  well  as  new  tasks  related  to  the  use  of  alternative  measures,  may  lead  to  a 
situation where the overall burden on Member States will not be reduced, and in some cases 
even increased.  

Additional  obligations  would  arise  for  the  EU  institutions.  This  would  concern  creating  the 
capacity  to  take  substantiated  decisions  at  the  EU  level  on  the  use  of  restrictions  on  non-
essential travel into the EU at external borders, but also to apply the contingency planning in 
case  of  need.  No  major  impact  on  EU  bodies  and  agencies  is  expected  although  the 
instrumentalisation  of  irregular  migraton  could  lead  to  the  bigger  involvement  of  the 

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European Borders and Coast Guard Agency, within the limits of the EBCG Regulation (EU) 
2019/189640 in order to assist the Member States in addressing this challenge. 

Overall,  these  additional  tasks  should  generate  limited  additional  costs  compared  to  the 
significant  positive  impact  on  managing  crisis  situations  putting  the  overall  functioning  of 
Schengen area at risk.  

• 

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)  as  well  as  the  right  to  asylum  (Article  18)  and  the  principle  of  non-
refoulement (Article 19). The safeguards of Article 3, Article 4 and Article 7 of the Schengen 
Borders Code continue to apply including with regard to the measures taken in order to face 
the instrumentalisation of migrants by third countries. Furthermore, as concerns the measures 
proposed  to  address  the  instrumentalisation  of  migrants,  the  Commission  considers  it 
necessary that Member States respect freedom of expression, media freedom and freedom of 
association of civil society organisations. 

The  proposed  measures  seek  to  address  problems  which  currently  have  an  impact  on  the 
following rights: i) the right to family life of persons residing legally in the EU, ii) the right to 
work, to exercise the right of establishment and to provide services in any Member State, iii) 
the right to move and reside freely within the territory of the Member States, and iv) the right 
to privacy and protection of personal data. 

While restrictions for non-essential travel to the EU will inevitably always affect some of the 
above  rights,  the  proposed  measures  will  not  increase  these  impacts  as  they  reflect  what  is 
currently in place based on the Council Recommendation 2020/912 and as such is considered 
necessary and proportionate in view of a threat to public health. 

The current long-lasting internal border controls and discretionary use of border controls as a 
precautionary  measure  especially  at  the  beginning  of  COVID-19  pandemic,  have  had  a 
significant impact on the fundamental rights listed above. The proposed measures concerning 
internal borders may only reduce this impact.  

As regards the use of alternative measures promoted in the proposal, the safeguards resulting 
from    the  current  anti-discrimination  obligations  under  EU  and  national  law  including  from 
Article 21 of the EU Charter of Fundamental Rights, as also explicitly reflected in Articles 4 
and 7(2) of the Schengen Borders Code, shall fully apply, so as to prevent racial profiling41 or 
other  illegal  practices.  The  Schengen  rules  could  contribute  to  that  end  with  increased 
monitoring measures, e.g. in the context of Schengen Evaluations.  

As regards the right to privacy and protection of personal data which could be more at stake in 
the  context  of  surveillance  and  monitoring  technologies,  all  proposed  measures  shall  be 

40 

41 

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on 
the  European  Border  and  Coast  Guard  and  repealing  Regulations  (EU)  No  1052/2013  and  (EU) 
2016/1624 OJ L 295, 14.11.2019, p. 1. 
'Profiling'  can  be  understood  as  “categorising  individuals  according  to  personal  characteristics.  These 
characteristics can be ‘unchangeable’ (such as age or height) or ‘changeable’ (such as clothing, habits, 
preferences and other elements of behaviour). Profiling includes data  mining  whereby individuals are 
categorised  ‘on  the  basis  of  some  of  their  observable  characteristics  in  order  to  infer,  with  a  certain 
margin of error, others that are not observable. 

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subject to the applicable EU data protection rules. National law shall provide a legal basis for 
processing the personal data. In this sense, all options ensure an adequate level of protection 
to the citizens and national laws providing the legal basis for processing of personal data by 
such technologies. 

4. 

BUDGETARY IMPLICATIONS 

The proposed amendment has no implications for the EU budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  evaluation  of  the  targeted  amendment  of  the  Schengen  Borders  Code  as  regards  the 
response  to  threats  to  the  area  without  controls  at  internal  borders  will  depend  on  the 
information to be received from the Member States.  

Table  11  in  the  Impact  Assessment  includes  a  non-exhaustive  list  of  quantitative  indicators 
proposed  to  monitor  the  achievement  of  policy  objectives  identified  in  this  Impact 
Assessment. These indicators reflect and define, in practice, the success of the policy options. 
However,  as  the  proposed  option  concerns  addressing  exceptional  situations,  the  regular 
measurement of the indicators is not possible.  

Moreover, this unpredictability prevents setting fixed quantitative targets.  

The  Commission  website  https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/schengen/reintroduction-border-control_en  informing  the  public  on  the  current  border 
checks at internal borders in place will remain the main information tool allowing to monitor 
and  evaluate  the  situation  at  the  internal  borders.  Given  the  limitations  of  the  legal  basis  to 
measures at the internal borders, the Commission cannot develop a separate tool on the use of 
alternative measures such as police checks in the border areas. However, the conditions of use 
of  the  alternative  measures  at  the  internal  borders  (police  checks/new  technologies)  will  be 
subject  to  monitoring  in  the  framework  of  the  Schengen  Evaluation  Mechanism,  including 
any possible on-spot visits at the internal borders and infringement proceedings. 

• 

Detailed explanation of the specific provisions of the proposal 

The proposal consists of four provisions. Article 1 introduces modifications in the Schengen 
Borders Code. Article 2 provides for an amendment of the Return Directive 2008/115/EC in 
order to: (i) reflect  the new procedure  allowing for immediate  transfer of irregular migrants 
apprehended at the internal borders as part of cross-border police operational cooperation to 
the  neighbouring  Member  State  that  is  proposed  to  be  introduced  to  the  Schengen  Borders 
Code; (ii) remove the stand-still clause from Article 6(3) of the Return Directive, and (iii) set 
up  an  obligation  on  the  Member  States  to  notify  to  the  Commission  any  such  new 
agreements/arrangements  and  modifications  of  the  existing  ones.  Article  3  sets  the 
transposition  period  for  the  amendment  of  the  Return  Directive.  Article  4  determines  the 
conditions of entry into force and the effects of the Regulation. 

Article 1: Modifications in the Schengen Borders Code: 

Article  2  of  the  Schengen  Borders  Code  is  modified  in  order  to  amend  the  definition  of 
the  necessary  definitions  for  such  concepts  as: 
‘border  surveillance’  and  reflect 
‘instrumentalisation of migrants’, ‘essential travel’ and ‘non-essential travel’ which have been 

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introduced  for  the  first  time  into  the  Schengen  Borders  Code  and  ‘transport  hubs’.  These 
definitions  are  added  to  better  reflect  the  responsibilities  of  Member  States  at  the  external 
borders to carry out border surveillance, including preventative measures.  

Article 5 is modified in order to clarify what measures the Member States can apply at their 
border crossing points when confronted with instrumentalisation of migrants. 

Article 13 is modified in order to clarify what measures the Member States can apply when 
performing  tasks  related  to  border  surveillance  at  their  external  borders  in  relation  to  the 
instrumentalisation of migrants, along with that what results from Article 5. 

Article  21a  is  added  in  order  to  create  a  ground  for  the  uniform  application  at  external 
borders  of  restrictions  on  non-essential  travel  to  the  European  Union  in  the  situation  of  a 
disease with an epidemiological potential. The provision confers on the Council the power to 
adopt,  on  the  basis  of  a  proposal  by  the  Commission,  an  implementing  regulation  in  this 
regard.  It  sets  out  all  necessary  parameters  for  such  a  decision  and  provides  for  safeguards 
with  regard  to  EU  citizens,  long-term  residents,  as  well  as  persons  exercising  essential 
functions.  

Article  23  is  modified  in  order  to  clarify  the  type  of  checks  authorised  in  the  border  areas. 
The  proposed  modifications  clarify  that  checks  carried  out  in  border  areas  with  the  use  of 
monitoring and surveillance technologies do not have an effect equivalent to border controls. 
Similarly, verification of passenger data of persons travelling within the area without controls 
at internal borders against relevant databases, if possible under the applicable law, should also 
be permitted from the perspective of the Schengen Borders Code.  

The new Article 23a sets up a procedure to transfer of irregular migrants apprehended at the 
internal borders as part of cross-border police operational cooperation  to the Member States 
from  where  they  come  directly.  It  complements  the  rules  applicable  under  the  Return 
Directive  as  a  necessary  flanking  measure  for  the  area  without  internal  border  controls  at 
internal borders. It provides for the possibility for the Member States to transfer persons who 
are  not  entitled  to  enter  or  to  stay,  pared  with  the  obligation  to  receive  such  persons, 
apprehended  at    the  internal  borders    in  the  context  of  cross-border  police  operational 
cooperation  such  as  joint  police  patrols  provided  there  is  a  clear  indication  that  the  person 
concerned  just  crossed  the  internal  border.  Such  indications  can  consist  in  the  lack  of  valid 
documents  certifying  the  identity  or  the  right  to  stay  in  the  Member  State,  a  registration  in 
Eurodac by another Member State or recent bills issued in the other Member State. The new 
article and the new Annex XII to the Schengen Borders Code set out the procedure applicable 
in such cases. 

The modified  Article  24 clarifies, in  view of the modifications made to  Article 23, that the 
use  of  monitoring  and  surveillance  technologies  at  land  crossing  points  may  justify,  along 
with  safety  measures,  speed  limits  or  other  obstacles  at  road  crossing  points  at  internal 
borders. 

Article  25  provides  for  a  general  framework  applicable  to  the  reintroduction  of  internal 
border  controls  at  internal  borders.  It  gives  examples  of  the  type  of  threat  that  may  lead  to 
unilateral reintroduction of border controls at internal borders and circumstances under which 
internal border controls can be prolonged.  

Article  25a  provides  for  the  procedure  applicable  to  unilateral  reintroductions  of  internal 
border controls by Member States in response to unforeseeable and foreseeable events. 

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Article 26 clarifies the criteria that should be taken into account and reflected by the Member 
States in the subsequent notification of internal border controls. In this regard, as a novelty, it 
adds the impact on cross-border regions. The provision establishes different requirements for 
situations  where  border  controls  are  reintroduced  for  the  first  time  and  where  the  border 
controls are prolonged for foreseeable threats, in order to take into account that the conditions 
for  maintaining  internal  border  controls  must  increase  over  time,  in  line  with  the 
proportionality principle. This article also introduces the concept of measures that mitigate the 
impacts  resulting  from  the  reintroduction  of  border  controls  which  should  be  applied 
accordingly.  

Article  27  is  replaced  by  a  new  one,  dedicated  to  the  notification  of  the  temporary 
reintroduction  or  prolongation  of  border  controls  at  internal  borders.  It  also  sets  out  an 
obligation to  submit a risk assessment in  case of  prolongation of internal  border  controls  in 
relation to foreseeable threats.  

Article  27a  clarifies  when  consultations  between  the  Commission  and  the  Member  States 
concerned should be carried out and circumstances under which an opinion on the necessity 
and proportionality of internal border controls could or should be issued.  

Article  28  is  replaced  by  a  new  provision  establishing  a  specific  Schengen  area  safeguard 
mechanism where the serious threat to public policy or internal security affects a majority of 
Member States at the same time, putting the overall functioning of the area without internal 
border  controls  at  risk.  The  provision  empowers  the  Council,  based  on  a  proposal  from  the 
Commission,  to  adopt  an  implementing  decision  on  a  coordinated  approach  to  the  serious 
threat  identified in  a  majority of Member States at  the same time, which would  replace  any 
national measures in place. The decision of the Council must be reviewed on a regular basis, 
upon  a  proposal  from  the  Commission,  with  a  view  to  prolonging,  modifying  or  lifting 
adopted measures.  

Article 31 is  modified in  order to  set  general  rules concerning information of the European 
Parliament and the Council, applicable under all four mechanisms.  

Article 33 is modified in order to disconnect the obligation to report on the reintroduction of 
border control at internal borders from the fact of lifting such controls. It also provides more 
details  on  the  elements  to  be  included  in  the  yearly  report  of  the  Commission  on  the 
functioning  of  the  area  without  internal  borders,  and  cooperation  with  the  Agencies  in  this 
regard. 

The  modified  Article  39  of  the  Schengen  Borders  Code  complements  Article  2  of  the 
proposed  Regulation  and  provides  for  an  obligation  of  the  Member  States  to  notify  to  the 
Commission  the  cross-border  regions,  in  order  to  determine  the  scope  of  any  mitigating 
measures to be provided for in an Implementing Regulation under Article 28 and the areas to 
be taken into account when estimating the impact under Article 26 of the Schengen Borders 
Code. 

To better take into account the interests of cross-border regions when applying Article 26 and 
28 of the Schengen Borders Code, the new Article 42b requires Member States to notify the 
Commission of designated cross-border regions. 

EN 

22 

  EN 

 
2021/0428 (COD) 

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 

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 
Article 77(2)(b) and (e) and Article 79(2)(c) 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 accordance with Article 3(2) of the Treaty on European Union (“TEU”), the Union 
comprises  an  area  of  freedom,  security  and  justice  that  is  free  of  internal  border 
controls,  in  which  the  free  movement  of  persons  is  ensured  in  conjunction  with 
appropriate measures regarding external border controls, asylum, immigration and the 
prevention and combating of crime.  

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 
2016  (“Schengen  Borders  Code”)42  lays  down  rules  governing  the  movement  of 
persons  to  and  from  the  area  without  controls  at  internal  borders  (the  “Schengen 
Area”) as well as between the Member States that participate in the Schengen Area. 

In  recent  years,  the  Schengen  area  has  been  subject  to  unprecedented  challenges, 
which by their nature were not  confined to the territory of any single Member State. 
Such challenges underscored the fact that the preservation of public order and security 
in the Schengen area is a shared responsibility requiring joined and coordinated action 
between Member States and at Union level. They also highlighted gaps in the existing 
rules  governing  the  functioning  of  the  Schengen  area  both  at  external  and  internal 
borders and the need to  create a stronger  and more robust framework allowing for a 
more effective response to challenges faced by the Schengen area. 

Border  control  at  external  borders  is  in  the  interest  not  only  of  the  Member  State  at 
whose external borders it is carried out but of all Member States which have abolished 
internal border control and the Union as a whole. Member States are required to ensure 
high  standards  in  management  of  their  external  borders,  including  through  enhanced 
cooperation between border guards, police, customs and other relevant authorities. The 
Union  provides  active  support  through  the  provision  of  financing  support  by  the 

42 

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), OJ L 
77, 23.3.2016, p. 1. 

EN 

23 

  EN 

 
 
                                                 
(5) 

(6) 

(7) 

Agencies, the European Border and Coast Guard in particular and management of the 
Schengen Evaluation Mechanism. The rules applicable to external borders need to be 
reinforced in order to better respond to new challenges that have recently emerged at 
the external borders. 

The COVID-19 pandemic has reinforced the need for the Union to be better prepared 
to  respond  to  crisis  situations at  the external  borders related to  situations of diseases 
with an epidemic potential that are a threat to public health. The COVID-19 pandemic 
has  shown  that  threats  to  public  health  can  require  uniform  rules  concerning  travel 
restrictions  for  travel  into  the  European  Union  by  third  country  nationals.  The 
adoption of inconsistent and divergent measures at the external borders to address such 
threats  negatively  affects  the  functioning  of  the  entire  Schengen  area,  reduces 
predictability  for  third-country  travellers  and  people-to-people  contacts  with  third 
countries.  To  prepare  the  Schengen  area  for  future  challenges  of  a  comparable  scale 
related to threats to public health, it is necessary to establish a new mechanism which 
should allow for a timely adoption and lifting of coordinated measures at Union level. 
The  new  procedure  at  the  external  border  should  be  applied  in  a  situation  of  an 
infectious  disease  with  epidemic  potential  as  identified  by  the  European  Centre  for 
Disease  Prevention  and  Control  or  the  Commission.  This  mechanism  should 
complement  the  procedures  proposed  to  be  established  in  the  Proposal  for  a 
Regulation  of  the  European  Parliament  and  of  the  Council  on  serious  cross-border 
threats to health43, notably in case of the recognition of a public health emergency, and 
the revised mandate of the European Centre for Disease Control.44 

The mechanism should  provide for the adoption by  the Council, upon a  proposal  by 
the Commission, of a regulation setting out restrictions on travel, including restrictions 
on entry and any other necessary measures for travel into the European Union, and the 
conditions for lifting them. In view of the politically sensitive nature of such measures 
which concern the right to enter the territory of Member States, implementing powers 
should  be  conferred  on  the  Council  to  adopt  such  a  regulation,  acting  on  a  proposal 
from the Commission.  

Importantly, in line with the applicable obligations under Union and international law, 
Union citizens and third-country nationals who, under agreements between the Union 
and its Member States, on the one hand, and those third countries, on the other hand, 
enjoy rights  of free movement equivalent  to  those of Union citizens,  as well as their 
respective family members should always be permitted to enter the Union. Residents 
in  the Union should also  always be permitted to  return to  the Union.  The act  should 
contain  all  necessary  elements  to  ensure  that  restrictions  on  travel  are  effective, 
targeted,  non-discriminatory  and  proportionate  to  the  evolving  epidemiological 
situation.  It  should  specify,  where  relevant,  any  categories  of  travellers  whose  travel 
should  be  exempted  from  restrictions  on  entry.  In  addition,  or  alternatively,  the  act 
should  specify  any  geographical  areas  or  third  countries  from  which  travel  may  be 
subject  to  specific  measures,  based  on  an  objective  methodology  and  criteria 
applicable thereto that should include, in particular, the epidemiological situation. The 
act could specify the conditions under which travel may be permitted such as testing, 
quarantine, self-isolation or any other appropriate measures, such as the need to fill in 
a passenger locator form or other contact tracing tool and having regard, in particular, 

43 
44 

COM(2020)727. 
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  Regulation  (EC) 
No 851/2004 establishing a European Centre for disease prevention and control, COM(2020)726. 

EN 

24 

  EN 

 
                                                 
(8) 

(9) 

to  any  Union  systems  developed  to  facilitate  travel  under  safe  conditions,  such  as 
digital  certification  systems.  Where  appropriate,  the  instrument  could  also  set  up  a 
mechanism allowing to take additional measures in case the epidemiological situation 
dramatically worsens in one or more geographical areas.  

It is also necessary to reinforce the rules and safeguards in Union law in order to allow 
Member States to  act  swiftly to  counter  instances  of instrumentalisation of migrants. 
Such instrumentalisation should be understood as referring to a situation where a third 
country  instigates  irregular  migratory  flows  to  the  Union  by  actively  encouraging  or 
facilitating the arrival of third country nationals to the external borders of the Member 
States, where such actions indicate an intention to destabilise the Union as a whole or 
a Member State and where the nature of such actions is liable to put at risk essential 
State functions, including its territorial integrity, the maintenance of law and order or 
the safeguard of its national security. 

Instrumentalisation of  migrants can refer to situations where irregular travel  of third 
country nationals has been actively encouraged or facilitated by a third country onto its 
own territory to reach the external border of the Member States but can equally refer to 
the  active  encouragement  or  facilitation  of  irregular  travel  of  third  country  nationals 
already  present  in  that  third  country.  Instrumentalisation  of  migrants  may  also  entail 
the  imposition  of  coercive  measures,  intended  to  prevent  the  third  country  nationals 
from  leaving  the  border  areas  of  the  instrumentalising  third  country,  in  a  direction 
other than through a Member State. 

(10)  The  Union  should  mobilise  all  tools  from  its  toolbox  of  diplomatic,  financial  and 
confronted  with 
operational  measures 
instrumentalisation. Diplomatic efforts by the Union or the Member State concerned, 
should  be  given  priority  as 
the  phenomenon  of 
instrumentalisation. This may be supplemented, where appropriate, by the imposition 
of restrictive measures by the Union. 

the  means  of  addressing 

the  Member  States 

support 

to 

(11)  At  the  same  time,  in  addition  to  these  measures,  it  is  equally  necessary  to  further 
reinforce  the  current  rules  in  relation  to  external  border  controls  and  border 
surveillance.  To  further  assist  the  Member  State  facing  an  instrumentalisation  of 
migrants,  Regulation  (EU)  XXX/XXX  complements  the  rules  on  border  control  by 
providing for specific measures in the area of asylum and return, while respecting the 
fundamental rights the individuals concerned and in particular by ensuring the respect 
of the right to asylum and providing the necessary assistance by the UN agencies and 
other relevant organisations.  

(12) 

In  particular,  in  a  situation  of  instrumentalisation,  it  should,  where  necessary,  be 
possible  for  the  Member  State  concerned,  to  limit  border  traffic  to  the  minimum  by 
closing some border crossing points, while guaranteeing genuine and effective access 
to  international  protection  procedures.  Any  such  decision  should  take  into  account 
whether the European Council has acknowledged that the Union or one or more of its 
Member States are facing a situation of instrumentalisation of migrants. Furthermore, 
any  such  limitations  should  take  full  account  of  the  rights  of  Union  citizens,  third 
country  nationals  who  are  beneficiaries  of  the  right  of  free  movement  pursuant  an 
international agreement and third-country nationals who are long-term residents under 
national  or  Union  law  or  are  holders  of  long-term  visas,  as  well  as  their  respective 
family  members.  Such  limitations  should  also  be  applied  in  a  manner  that  ensures 
respect  for  obligations  related  to  access  to  international  protection,  in  particular  the 
principle of non-refoulement.  

EN 

25 

  EN 

 
(13)  The  European  Border  and  Coast  Guard  Agency  assists  Member  States  with 
implementing  the  operational  aspects  of  external  border  management,  including 
information  exchange,  the  provision  of  equipment,  capacity  building  and  training  to 
national  border  guards,  targeted  information  and  risk  analysis,  as  well  as  the 
deployment  of  the  Standing  Corps.  The  Agency’s  new  mandate  offers  considerable 
opportunities  to  support  border  control  activities,  including  screening  and  return 
operations and a launch of rapid border intervention and/or return intervention at the 
request and on the territory of the host Member State concerned. 

(14)  By  virtue  of  Article  41(1)  of  Regulation  (EU)  2019/1896,  the  Executive  Director  of 
the European Border and Coast Guard Agency is required to recommend to a Member 
State that it request the Agency to initiate, carry out or adjust the Agency’s support, in 
order  to  address  identified  threats  and  challenges  at  the  external  borders,    where  the 
conditions  laid  down  in  that  provision  are  met.  In  particular,  the  need  for  Agency 
support  may  become  apparent  in  situations  where  the  European  Border  and  Coast 
Guard Agency has carried out a dedicated vulnerability assessment in connection with 
the instrumentalisation of migrants. On the basis of the results of such a vulnerability 
assessment or where a critical impact level is attributed to one or more external border 
sections  and  taking  into  account  the  relevant  elements  in  the  Member  State's 
contingency plans, the  Agency's  risk analysis and the analysis layer of  the European 
situational  picture,  the  Executive  Director  should  recommend  to  the  Member  State 
concerned to request that the Agency initiate, carry out or adjust the Agency’s support 
in accordance with Article 41(1) of Regulation (EU) 2019/1896.  This competence of 
the Executive Director is without prejudice to the general support that the Agency may 
be providing to the Member States. 

(15)  Moreover,  in  the  event  of  instrumentalisation  of  migrants,  the  Member  State 
concerned  should  reinforce  border  control,  including,  as  appropriate,  through 
additional  measures  preventing  illegal  crossings  and  the  deployment  of  additional 
resources  and  technical  means  to  prevent  unauthorised  crossing  of  the  border.  Such 
technical  means  could  include  modern  technologies  including  drones  and  motion 
sensors,  as  well  as  mobile  units.  The  use  of  such  technical  means,  in  particular,  any 
technologies capable of collecting personal data, needs to be based on and exercised in 
accordance with clearly defined provisions of national law. 

(16)  The  Commission  should  be  empowered  to  specify,  in  delegated  acts  adopted  under 
this Regulation, appropriate standards for border surveillance, concerning in particular 
the new technologies that Member States may use, while taking into account the type 
of borders (land, sea or air), the impact levels attributed to each external border section 
in  accordance  with  Article  34  of  Regulation  (EU)  2019/1896  and  other  relevant 
factors, as a specific response to situations of instrumentalisation of migrants.  

(17) 

In an area without internal border controls, persons should be able to move freely, and 
in  security  between  Member  States.  In  this  regard,  it  should  be  clarified  that  the 
prohibition of controls at internal borders does not affect the competence of Member 
States  to  carry  out  checks  on  their  territory,  including  at  their  internal  borders,  for 
purposes  other  than  border  control.  It  should,  in  particular,  be  clarified  that  national 
competent  authorities,  including  health  or  law  enforcement  authorities,  remain,  in 
principle, free to carry out checks in the exercise of public powers provided for under 
national law.  

(18)  While  the  prohibition  of  internal  border  controls  also  extends  to  checks  having 
equivalent  effects,  checks  by  competent  authorities  should  not  be  considered 

EN 

26 

  EN 

 
equivalent to the exercise of border checks where they do not have border control as 
an  objective,  where  they  are  based  on  general  information  and  experience  of  the 
competent  authorities  regarding  possible  threats  to  public  security  or  public  policy, 
including  where  they  aim  to  combat  irregular  stay  or  residence  and  cross-border 
crimes linked to irregular migration, where they are devised and executed in a manner 
clearly distinct from systematic checks on persons at the external borders, and where 
they are conducted at transport hubs, such as ports, train or bus stations and airports or 
directly  on  board  of  passenger  transport  services,  and  where  they  are  based  on  risk 
analysis. 

(19)  While  irregular  migratory  flows  should  not,  per  se,  be  considered  to  be  a  threat  to 
public policy or internal security, they may require additional measures to ensure the 
functioning of the Schengen area. 

(20)  The  combatting  of  illegal  residence  or  stay  and  of  cross-border  crime  linked  to 
irregular migration such as human trafficking, migrant smuggling and document fraud 
and  other  forms  of  cross-border  crime  could  in  particular  encompass  measures 
allowing  the  verification  of  the  identity,  nationality  and  residence  status  of  persons 
provided that such verifications are non-systematic and carried out on the basis of risk 
analysis. 

(21)  The  use  of  modern  technologies  to  monitor  traffic  flows,  notably  on  motorways  and 
other  important  roads  determined  by  the  Member  States,  can  be  instrumental  in 
addressing  threats  to  public  policy  or  internal  security.  The  prohibition  of  internal 
border controls should not be understood as preventing the lawful exercise of police or 
other  public  powers  to  carry  out  checks  in  the  internal  border  areas.  This  includes 
checks  that  entail  the  use  of  monitoring  and  surveillance  technologies  which  are 
generally used in the territory or that are based on a risk assessment for the purpose of 
protecting internal security. The use of such technologies for checks should therefore 
not be considered as equivalent to border controls. 

(22) 

In order to allow for such technologies to be effective, it should be possible to apply 
proportionate speed limits at road crossings. 

(23)  The prohibition of border controls at internal borders should not limit the carrying out 
of  checks  provided  for  in  other  instruments  of  Union  law.  The  rules  provided  for  in 
this Regulation, should not therefore, affect the applicable rules regarding the carrying 
out of checks on passenger data against relevant databases in advance of arrival. 

(24) 

It  is  necessary  to  ensure  that  checks  carried  out  by  Member  States  in  exercise  of 
national  competences  remain  fully  consistent  with  an  area  that  is  free  of  internal 
border  controls.  In  accordance  with  the  case  law  of  the  Court  of  Justice,  the  more 
extensive the indications are that checks conducted by Member States at their border 
areas  have  an  equivalent  effect  to  border  control,  having  regard  to  the  objective  of 
such checks, their territorial scope and possible differences compared to checks carried 
out  in  the  remainder  of  the  territory  of  the  Member  State  concerned,  the  greater  the 
need  for  strict  and  detailed  rules  and  limitations  laying  down  the  conditions  for  the 
exercise, by the Member States, of their police powers in a border area.  

(25)  Measures  need  to  be  taken  to  address  unauthorised  movements  of  illegally  staying 
third  country  nationals  in  an  area  without  internal  border  controls.  In  order  to 
strengthen the functioning of the Schengen area, Member States should be able to take 
additional  measures  to  counter  irregular  movements  between  Member  States,  and 
combat  illegal  stays.  Where  national  law  enforcement  authorities  of  a  Member  State 

EN 

27 

  EN 

 
apprehend  illegally  staying  third  country  nationals  at  the  internal  borders  as  part  of 
cross-border police operational cooperation it should be possible for those authorities 
to refuse such persons the right to enter or remain in their territory and to transfer them 
to  the  Member  State  from  which  they  entered.  The  Member  State  from  where  the 
person  came  directly  should  in  turn  be  required  to  receive  the  apprehended  third 
country nationals. 

(26)  The  procedure  by  which  a  Member  State  may  transfer  apprehended  illegally  staying 
third country nationals to a Member State from where the person came directly should 
take  place  swiftly  but  be  subject  to  safeguards  and  carried  out  in  full  respect  of 
fundamental rights and the principle of non-discrimination enshrined in Article 21 of 
the Charter, to prevent racial profiling. It should be possible for the authorities to carry 
out  a  verification  of  relevant  information  immediately  available  to  the  authorities 
concerning  the  movements  of  the  persons  concerned.  Such  information  may  include 
objective  elements  that  would  allow  the  authorities  to  conclude  that  the  person  had 
recently travelled from another Member States, such as the possession of documents, 
including  receipts  or  invoices,  evidencing  recent  travel  from  another  Member  State. 
Third  country  nationals  subject  to  the  transfer  procedure  should  be  provided  with  a 
reasoned decision in  writing.  While the decision should be immediately enforceable, 
the third country national should be afforded an effective remedy to appeal against or 
seek review of the transfer decision. This remedy should not have suspensive effect. 

(27)  The  transfer  procedure  provided  for  under  this  Regulation  should  not  affect  the 
existing  possibility  for  Member  States  to  return  irregular  third  country  nationals  in 
accordance  with  bilateral  agreements  or  arrangements  referred  to  in  Article  6(3)  of 
Directive  2008/115/EC  (the  “Return  Directive”),  where  such  persons  are  detected 
outside of the vicinity of internal borders. In order to facilitate the application of such 
agreements,  and  to  complement  the  objective  of  protecting  the  area  without  internal 
borders,  the  Member  States  should  be  afforded  the  possibility  to  conclude  new 
agreements  or  arrangements  and  update  existing  ones.  The  Commission  should  be 
notified  of  any  such  modifications  or  updates  of  new  agreements  or  arrangements. 
Where  a  Member  State  has  taken  back  a  third  country  national  under  the  procedure 
provided for in this Regulation or on the basis of a bilateral agreement or arrangement, 
the  Member  State  concerned  should  be  required  to  issue  a  return  decision  in 
accordance with the Return Directive. In order to ensure consistency between the new 
procedures  provided  for  in  this  Regulation  and  existing  rules  on  the  return  of  third 
country  nationals,  a  targeted  modification  of  Article  6(3)  of  the  Return  Directive  is 
therefore necessary. 

(28) 

In exceptional cases, addressing threats to the Schengen area may require the adoption, 
by  the  Member  States,  of  measures  at  the  internal  borders.  Member  States  remain 
competent  to  determine  the need for the temporary  reintroduction or prolongation of 
border  controls.  Under  the  existing  rules,  the  reintroduction  of  controls  at  internal 
borders is provided for in circumstances where a serious threat to internal security or 
public policy manifests itself in a single Member State for a limited period of time. In 
particular,  terrorism  and  organised  crime,  large  scale  public  health  emergencies  or 
large  scale  or  high  profile  international  events  such  as  sporting,  trade  or  political 
events can amount to a serious threat to public policy or internal security.  

(29)  Furthermore, a serious threat to public policy or internal security can also result from 
large scale unauthorised movements of irregular migrants between the Member States 
where this creates a situation putting a strain on the overall resources and capacities of 
the  responsible  national  services,  where  the  other  means  provided  for  under  this 

EN 

28 

  EN 

 
Regulation are not sufficient to address these inflows and movements. In this context, 
Member  States  should  be  able  to  rely  on  objective  and  quantified  reports  on 
unauthorised    movements  whenever  available,  in  particular,  when  produced  on  a 
regular basis by the competent Union agencies in line with their respective mandates. 
It  should  be  possible  for  a  Member  State  to  use  the  information  provided  by  the 
agencies  to  demonstrate  the  exceptional  character  of  the  identified  threat  caused  by 
unauthorised movement in the risk assessment, in order to justify the reintroduction of 
internal border controls on this ground.  

(30)  While  action  at  Union  level  is  provided  for  in  circumstances  where  the  nature  of  a 
threat  derives  from  persistent serious deficiencies at  the external  borders,  there is  no 
Union-wide  mechanism  that  would  apply  to  situations  where,  within  the  Schengen 
area, a serious threat to internal security or public policy area is affecting a majority of 
Member  States,  putting  at  risk  the  well-functioning  of  the  Schengen  area.  The  gap 
should  be  filled  by  putting  in  place  a  new  Schengen  area  safeguard  mechanism 
permitting coordinated solutions  to protect  the interests of persons entitled to  benefit 
from the area without controls at internal borders, by maximising the effectiveness of 
the measures taken while minimising their negative side-effects.  

(31)  The new Schengen area safeguard mechanism should allow the Council to adopt, upon 
a  proposal  by  the  Commission,  a  decision  authorising  the  reintroduction  or 
prolongation of internal  border controls, where this is justified by a particular threat, 
identified  on  the  basis  of  notifications  received  from  individual  Member  States,  or 
other available information, in particular a risk assessment, in case of prolongation of 
internal  border  controls  beyond  six  months.  Given  the  politically  sensitive  nature  of 
such  a  decision  which  regulates  the  possibility  for  Member  States  to  reintroduce  or 
prolong  internal  border  control  in  particular  circumstances,  implementing  powers  to 
adopt  a  decision  should  be  conferred  on  the  Council,  acting  on  a  proposal  from  the 
Commission. 

(32) 

In determining whether a reintroduction or prolongation of internal border controls by 
the Member States is justified, the Council should take into account whether any other 
measures  that  could  ensure  a  high  level  of  security  within  the  territory,  such  as 
reinforced  checks  in  the  internal  border  areas  by  the  competent  authorities,  are 
available.  In  the  event  that  a  prolongation  of  the  controls  is  not  considered  justified, 
the Commission should, instead, recommend the use of other measures deemed more 
appropriate to address the identified threat.  

(33)  The establishment of the new Schengen area safeguard mechanism should not  affect 
the right of Member States to have prior recourse to unilateral measures in accordance 
with  the  Regulation,  where  the  situation  so  requires.  However,  once  adopted,  the 
Union measure should become the single basis for a coordinated response to the threat 
identified. 

(34) 

In order to ensure compliance with the principle of proportionality, the decision of the 
Council should be adopted for a limited period of time of up to six months that may be 
prolonged subject to regular review upon a proposal from the Commission, as long as 
the threat is found to persist. The initial decision should include an assessment of the 
expected  impact  of  the  measures  adopted,  including  its  adverse  side-effects,  with  a 
view  to  determining  if  controls  at  internal  borders  are  justified  or  whether  less 
restrictive measures could be applied in their place in an effective manner. Subsequent 
decisions  should  take  account  of  the  evolution  of  the  identified  threat.  The  Member 
States  should  immediately  notify  the  Commission  and  the  Member  States  of  the 

EN 

29 

  EN 

 
reintroduction  of  internal  border  controls  in  accordance  with  the  decision  of  the 
Council. 

(35)  Reintroduction of internal  border controls  should also  remain  possible  where serious 
deficiencies  in  the  management  of  the  external  borders  persist,  putting  at  risk  the 
overall  functioning  of  the  area  without  internal  border  control.  Periods  where  the 
border  controls  were  introduced  by  Member  States  because  the  urgency  of  the 
situation  required  it  or  where  the  Council  takes  a  decision  to  recommend  the 
reintroduction because a threat affects a significant number of Member States, should 
not be included in the two years’ period applicable to reintroductions based on serious 
deficiencies at the external borders. 

(36)  The  reintroduction  of  border  controls  at  internal  borders,  whether  on  the  basis  of 
unilateral decisions of the Member States or at a Union level, has serious implications 
for  the  functioning  of  the  Schengen  area.  In  order  to  ensure  that  any  decision  to 
reintroduce border controls is only taken where necessary, as a measure of last resort, 
the decision on temporary reintroduction or prolongation of border controls should be 
based on common criteria, putting an emphasis on necessity and proportionality. The 
proportionality principle requires that the reintroduction of internal border controls be 
subject to safeguards that increase over time. 

(37) 

(38) 

In  the  first  instance,  Member  States  should  assess  the  appropriateness  of  internal 
border  controls  having  regard  to  the  nature  of  the  serious  threat  identified.  In  this 
context,  the  Member  States  should  pay  particular  attention  to  and  assess  the  likely 
impact of internal border controls on the movement of persons within the area without 
internal  border  controls  and  the  functioning  of  the  cross-border  regions.  This 
assessment  should  be  part  of  the  notification  that  Member  States  are  required  to 
transmit  to  the  Commission.  In  case  of  prolongation  of  internal  border  controls  for 
foreseeable  events  beyond  an  initial  period  of  six  months,  the  Member  State  should 
also assess the appropriateness of alternative measures to pursue the same objectives 
as internal border controls, such as proportionate checks as carried out in the exercise 
of  police  or  other  public  powers  or  through  forms  of  police  cooperation  as  provided 
for under Union law, and the possibility to use the transfer procedure.  

In  order  to  limit  harmful  consequences  resulting  from  the  reintroduction  of  internal 
border  controls,  any  decision  to  reintroduce  internal  border  controls  should  be 
accompanied  by  mitigating  measures  if  needed.  Such  measures  should  include 
measures to assure a smooth operation of transit of goods and transport personnel and 
seafarers by the establishment of ‘green lanes’. In addition, and to take account of the 
need  to  ensure  the  movement  of  persons  whose  activities  may  be  essential  for 
preserving  the  supply  chain  or  the  provision  of  essential  services,  Member  States 
should  also  apply  the  existing  guidelines  on  cross-border  workers45.  Against  this 
background,  the  rules  for  the  reintroduction  of  border  controls  at  internal  borders 
should  take  account  of  the  guidelines  and  recommendations  adopted  throughout  the 
COVID-19  pandemic  as  a  solid  safety  net  for  the  Single  Market,  for  the  purpose  of 
assuring that they are applied by the Member States, where appropriate, as mitigating 
measures  during  reintroduced  internal  border  controls.  Measures  should  in  particular 
be  identified  with  a  view  to  ensuring  the  uninterrupted  functioning  of  the  Single 
Market  and  safeguarding  the  interests  of  cross-border  regions  and  of  ‘twin  cities’ 

45 

2020/C 102 I/03. 

EN 

30 

  EN 

 
                                                 
including for instance authorisations or derogations for the inhabitants of cross-border 
regions.   

(39)  The  notification  to  be  provided  by  the  Member  States  should  be  decisive  when 
assessing compliance with the criteria and conditions for a temporary reintroduction of 
internal  border  controls.  In  order  to  ensure  a  comparable  set  of  information,  the 
Commission  should  adopt  a  template  for  the  notification  of  reintroduction  of  border 
controls at internal borders in an implementing act. Member States should be entitled 
to classify all or parts of the information provided in the notification, without prejudice 
to the functioning of appropriate and secure police cooperation channels.   

(40) 

In order to ensure that internal border controls are truly a last resort measure applied 
only  for  as  long  as  necessary  and  in  order  to  allow  for  assessing  the  necessity  and 
proportionality  of  internal  border  controls  to  address  foreseeable  threats,  Member 
States  should  prepare  a  risk  assessment  to  be  submitted  to  the  Commission  when 
internal  border  controls  are  prolonged  beyond  an  initial  six  months  in  response  to 
foreseeable  threats.  The  Member  States  must  in  particular,  explain,  the  scale  and 
evolution  of  the  identified  serious  threat,  including  how  long  the  identified  serious 
threat is expected to persist and which sections of the internal borders may be affected, 
as well as their coordination measures with the other Member States that are impacted 
or likely to be impacted by such measures. 

(41)  The  Commission  should  be  entitled  to  request  additional  information  based  on  the 
notification received, including on the risk assessment or cooperation and coordination 
measures  with  the  Member  States  affected  by  the  planned  prolongation  of  border 
control at internal borders. Where the notification does not comply with the minimum 
requirements, the Commission should discuss the notification with the Member State 
concerned and request additional information or a resubmission of the notification. 

(42) 

In  order  to  ensure  a  sufficient  degree  of  transparency  of  the  actions  affecting  travel 
without internal border controls, the Member States should also inform the European 
Parliament  and  the  Council  about  the  main  elements  concerning  the  planned 
reintroduction of border controls. In justified cases, Member States may also classify 
such information. Every  year,  pursuant  to  Article 33 of the Schengen Borders Code, 
the Commission should present to the European Parliament and to the Council a report 
on  the  functioning  of  the  area  without  internal  border  control  (‘State  of  Schengen 
report’)  which  should  pay  particular  attention  to  the  situation  as  regards  the 
unauthorised  movements  of  third  country  nationals,  building  on  the  available 
information  from  the  relevant  Agencies  and  data  analysis  from  relevant  information 
systems. It should also assess the necessity and proportionality of the reintroductions 
of border controls in the period covered by that Report. The State of Schengen report 
shall  also  cover  the  reporting  obligations  resulting  from  Article  20  of  the  Schengen 
Evaluation Mechanism46.   

(43)  The mechanism for the temporary reintroduction of border controls at internal borders 
in urgent situations or to address  foreseeable threats should provide for a possibility, 
for  the  Commission,  to  organise  consultations  between  Member  States,  including  at 
the request of any Member State. Relevant Union Agencies should be involved in this 

46 

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring 
mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive 
Committee  of  16  September  1998  setting  up  a  Standing  Committee  on  the  evaluation  and 
implementation of Schengen, OJ L 295, 6.11.2013, p. 27. 

EN 

31 

  EN 

 
                                                 
process in order to share their expertise, where appropriate. Such consultations should 
look  into  the  modalities  of  carrying  out  internal  border  controls  and  their  time-line, 
possible  mitigating  measures  as  well  as  the  possibilities  of  applying  alternative 
measures  instead.  Where  the  Commission  or  a  Member  State  has  issued  an  opinion 
expressing concerns regarding the reintroduction of border controls, such consultations 
should be mandatory. 

(44)  The  Commission  and  Member  States  should  retain  the  possibility  to  express  any 
concern as regards the necessity and proportionality of a decision of a Member State to 
reintroduce internal border controls for reason of urgency or to address a foreseeable 
threat.  In  case  controls  at  internal  borders  are  reintroduced  and  prolonged  for 
foreseeable  threats  for  combined  periods  exceeding  eighteen  months,  it  should  be  a 
requirement  for  the  Commission  to  issue  an  opinion  assessing  the  necessity  and 
proportionality of such internal border controls. Where a Member State considers that 
there  are  exceptional  situations  justifying  the  continued  need  for  internal  border 
controls  for a period  exceeding two  years, the Commission  should issue a follow-up 
opinion. Such an opinion is without prejudice to the enforcement measures, including 
infringement  actions,  which  the  Commission  may  take  at  any  time  against  any 
Member  State  for  failure  to  comply  with  its  obligations  under  Union  law.  Where  an 
opinion  is  issued,  the  Commission  should  launch  consultations  with  the  Member 
States concerned.  

(45) 

In  order  to  enable  the  post  factum  analysis  of  the  decision  on  the  temporary 
reintroduction of border controls at the internal borders, Member States should remain 
obliged to submit a report on the reintroduction of border control at internal borders to 
the European Parliament, the Council and the Commission once they lift the controls. 
Where  the  controls  are  kept  in  place  for  prolonged  periods  of  time,  such  a  report 
should  also  be  submitted  after  twelve months,  and  every  year  thereafter  if 
exceptionally  controls  are maintained  and for as  long as the controls  are  maintained. 
The  report  should  outline,  in  particular,  the  initial  and  follow-up  assessment  of  the 
necessity of internal border controls and the respect of the criteria for reintroduction of 
border controls at internal borders. The Commission should adopt in an implementing 
act a template and make it available online.  

(46)  When  implementing  this  Regulation,  Member  States  shall  not  discriminate  against 
persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or 
sexual orientation. 

(47)  The  competent  authorities  shall  use  their  powers  to  carry  out  checks  within  the 
territory and apply relevant  procedures  in  full respect  of the rules on data protection 
under  Union  law.  Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the 
Council  or  Directive  (EU)  2016/680  of  the  European  Parliament  and  of  the  Council 
apply  to  the  processing  of  personal  data  by  competent  national  authorities  for  the 
purposes of this Regulation, in their respective field of application. 

(48)  The objective of this Regulation is to strengthen the functioning of the Schengen area. 
This  objective  cannot  be  achieved  by  Member  States  acting  alone.  Therefore,  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. 

EN 

32 

  EN 

 
(49) 

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. 

(50)  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/EC47; Ireland is therefore not taking part in the adoption of this Regulation 
and is not bound by it or subject to its application.  

(51)  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 
development of the Schengen acquis48, which fall within the area referred to in point 
A of Article 1 of Council Decision 1999/437/EC49. 

(52)  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  acquis50  which  fall  within  the  area  referred  to  in  Article  1,  point  A  of 
Decision  1999/437/EC51  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC.52 

(53)  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  acquis53  which  fall  within  the  area  referred  to  in 

47 

48 
49 

50 
51 

52 

53 

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. 
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. 

EN 

33 

  EN 

 
                                                 
Article 1,  point  A  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of 
Council Decision 2011/350/EU54.  

(54)  This Regulation is without prejudice to the application of Directive 2004/38/EC55. 

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

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

(56)  Regulation  (EU)  No  2016/399  and  Directive  2008/115/EC  should  therefore  be 

amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

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

(1) 

Article 2  is modified as follows: 

a) point 12 is replaced by the following: 

12. ‘border surveillance’ means the surveillance of borders between crossing points 
and  of  border  crossing  points  outside  fixed  opening  hours,  including  preventative 
measures to detect and prevent unauthorised border crossings or the circumvention of 
border checks.  

b) the following points 27 to 30 are added: 

27.  ‘instrumentalisation  of  migrants’  refers  to  a  situation  where  a  third  country 
instigates  irregular  migratory  flows  into  the  Union  by  actively  encouraging  or 
facilitating the movement of third country nationals to the external borders, onto or 
from  within  its  territory  and  then  onwards  to  those  external  borders,  where  such 
actions are indicative of an intention of a third country to destabilise the Union or a 
Member State, where the nature of such actions is liable to put at risk essential State 
functions, including its territorial integrity, the maintenance of law and order  or the 
safeguard of its national security;   

28. ‘essential travel’ means  travel  in  connection with  an essential function or need, 
taking into account any applicable international obligations of the Union and of the 
Member States and listed in Annex XI; 

29. ‘non-essential travel’ means travel for purposes other than essential travel; 

30. ‘transport hubs’ means airports, sea or river ports, train or bus stations.’ 

(2) 

In Article 5, a new paragraph 4 is added: 

54 

55 

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. 
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  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC (OJ L 158 30.4.2004, p. 77). 

EN 

34 

  EN 

 
                                                 
‘4.  In  a  situation  of  instrumentalisation  of  migrants,  Member  States  may  limit  the 
number of border crossing points as notified pursuant to paragraph 1 or their opening 
hours where the circumstances so require. 

Any limitations adopted pursuant to the first subparagraph shall be implemented in a 
manner that is proportionate and that takes full account of the rights of: 

(a) 

the persons enjoying the right of free movement under Union law; 

(b) 
third-country  nationals  who  are  long-term  residents  under  Council  Directive 
2003/109/EC56,  persons  deriving  their  right  to  reside  from  other  instruments  of 
Union  or  national  law  or  who  hold  national  long-term  visas,  as  well  as  their 
respective family members; 

(c) 

third-country nationals seeking international protection.’ 

(3) 

Article 13 is replaced by the following: 

‘Article 13 

Border surveillance 

1. 

The  main  purpose  of  border  surveillance  shall  be  to  detect  and  prevent 
unauthorised border crossings, to  counter cross-border criminality and to  take 
measures against persons who have crossed the border illegally. 

 A person who has crossed a border illegally and who has no right to stay on the 
territory  of  the  Member  State  concerned  shall  be  apprehended  and  made 
subject to procedures respecting Directive 2008/115/EC. 

2. 

The  border  guards  shall  use  stationary  or  mobile  units  to  carry  out  border 
surveillance. 

That  surveillance  shall  be  carried  out  in  such  a  way  as  to  prevent  and 
discourage  persons  from  unauthorised  border  crossings  between  border 
crossing points and from circumventing the checks at border crossing points. 

Surveillance  between  border  crossing  points  shall  be  carried  out  by  border 
guards  whose  numbers  and  methods  shall  be  adapted  to  existing  or  foreseen 
risks and threats.  It shall involve frequent and sudden changes to surveillance 
periods and other methods or techniques, so that unauthorised border crossings 
are effectively detected or prevented.  

Surveillance shall be  carried out  by stationary or mobile units which perform 
their duties by patrolling or stationing themselves at places known or perceived 
to  be  sensitive,  the  aim  of  such  surveillance  being  to  prevent  unauthorised 
border  crossings  or  apprehend  individuals  crossing  the  border  illegally. 
Surveillance may also be carried out by technical means,  including electronic 
means, equipment and surveillance systems.  

In a situation of instrumentalisation of  migrants, the Member State concerned 
shall  intensify  border  surveillance  as  necessary  in  order  to  address  the 
increased threat. In particular, the Member State shall enhance, as appropriate, 

3. 

4. 

5. 

56 

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are 
long-term residents (OJ L 16, 23.1.2004, p. 44). 

EN 

35 

  EN 

 
 
 
                                                 
the  resources  and  technical  means  to  prevent  an  unauthorised  crossing  of  the 
border. 

Those technical means may include modern technologies including drones and 
motion  sensors,  as  well  as  mobile  units  to  prevent  unauthorised  border 
crossings into the Union. 

6.  Without  prejudice  to  the  support  that  the  European  Border  and  Coast  Guard 
Agency  may  provide  to  the  Member  States,  in  the  event  of  a  situation  of 
instrumentalisation  of  migrants,  the  Agency  may  carry  out  a  vulnerability 
assessment  as  provided  for  in  Articles  10(1),  point  (c),  and  Article  32  of 
Regulation (EU) 2019/1896 of the European Parliament and Council57, with a 
view to providing the necessary support to the Member State concerned.  

On the basis of the results of that assessment or any other relevant vulnerability 
assessment  or  the  attribution  of  a  critical  impact  level  to  the  border  section 
concerned  within  the  meaning  of  Article  35(1)(d)  of  Regulation  (EU) 
2019/1896,  the  Executive  Director  of  the  European  Border  and  Coast  Guard 
Agency shall make recommendations, in accordance with Article 41(1) of that 
Regulation to any Member State concerned.  

7. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance 
with  Article  37  concerning  additional  measures  governing  surveillance, 
including  the  development  of  standards  for  border  surveillance,  in  particular 
the  use  of  surveillance  and  monitoring  technologies  at  the  external  borders, 
taking  into  account  the  type  of  borders,  the  impact  levels  attributed  to  each 
external  border  section  in  accordance  with  Article  34  of  the  Regulation  (EU) 
2019/1896 and other relevant factors.’ 

(4) 

Chapter  V  is  renamed  as  follows:  “Specific  measures  relating  to  the  external 
borders”  

In Chapter V, the following Article 21a is inserted:  

“Article 21a 
Restrictions on travel to the European Union 

1. 

2. 

This  Article  shall  apply  to  situations  where  the  European  Centre  for  Disease 
Prevention  and  Control  or  the  Commission  identify  the  existence  in  one  or 
more third countries of an infectious disease with epidemic potential as defined 
by the relevant instruments of the World Health Organization. 

The  Council,  on  the  basis  of  a  proposal  by  the  Commission,  may  adopt  an 
implementing regulation, providing for temporary restrictions  on travel  to  the 
Member States. 

Such  temporary  restrictions  on  travel  may  include  restrictions  on  entry  to  the 
Member States and other measures considered necessary for the protection of 
public  health  in  the  area  without  controls  at  internal  borders,  such  as  for 
instance testing, quarantine, and self-isolation. 

57 

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019  on 
the  European  Border  and  Coast  Guard  and  repealing  Regulations  (EU)  No  1052/2013  and  (EU) 
2016/1624, OJ L 295, 14.11.2019. 

EN 

36 

  EN 

 
  
 
 
                                                 
3. 

b) 

The following categories of persons shall be exempted from the restrictions on 
entry, independent of the purpose of their travel: 

a) 

persons enjoying the right of free movement under Union law; 

third-country  nationals  who  are 
residents  under  Directive 
2003/109/EC,  persons deriving their  right  to  reside from other instruments  of 
Union  law  or  national  law  or  who  hold  national  long-term  visas,  as  well  as 
their respective family members.4.  The  implementing  regulation  referred  to 
in paragraph 1 shall, where appropriate: 

long-term 

a) 

b) 

c) 

d) 

define  any  categories  of  persons  undertaking  non-essential  travel  to  be 
exempted from any restrictions applicable to travel;  

identify  any  geographical  areas  or  third  countries  from  which  non-
essential  travel  may  be  subject  to  restrictions  or  exemptions  from 
restrictions,  having  regard  to  the  particular  situation  of  the  areas  or 
countries  concerned  on  the  basis  of  objective  methodology  and  criteria, 
including, in particular, the epidemiological situation; 

lay  down  the  conditions  under  which  non-essential  travel  as  referred  to 
under  points  (a)  and  (b)  may  be  restricted  or  exempt  from  restrictions, 
including  proof  to  be  presented  to  support  the  exemption  and  the 
conditions  relating  to  the  duration  and  nature  of  stay  in  the  areas  or 
countries referred to in point (b); 

lay down the conditions under which travel restrictions may be imposed, 
exceptionally,  on  persons  undertaking  essential  travel,  in  the  event  that 
the epidemiological situation worsens quickly and, in particular where a 
variant of concern or variant of interest has been detected. 

5.   Restrictions  on  essential  travel  referred  to  in  paragraph  4(d)  may  not  include 
restrictions on entry as regards travellers listed in point i. and points iv. to viii. 
of Annex XI.” 

(5) 

Article 23 is replaced by the following: 

“Article 23 
Exercise of public powers 

The absence of border control at internal borders shall not affect: 

a) 

the  exercise  of  police  or  other  public  powers  by  the  competent  authorities  of 
the Member States in their territory, including in their internal border areas, as 
conferred on them under national law, insofar as the exercise of those powers 
does not have an effect equivalent to border checks.  

The exercise by competent authorities of their powers may not, in particular, be 
considered equivalent to the exercise of border checks when the measures: 

i) 

ii) 

do not have border control as an objective; 

are  based  on  general  information  and  experience  of  the  competent 
authorities  regarding  possible  threats  to  public  security  or  public  policy 
and aim, in particular, to: 

– 

combat cross-border crime; 

EN 

37 

  EN 

 
 
 
– 

– 

combat irregular residence or stay, linked to irregular migration; or 

contain the spread of an infectious disease with epidemic potential 
as detected by the European Centre for Disease Control;  

iii) 

iv) 

are  devised  and  executed  in  a  manner  clearly  distinct  from  systematic 
checks  on  persons  at  the  external  borders,  including  where  they  are 
conducted  at  transport  hubs  or  directly  on  board  of  passenger  services 
and when they are based on risk analysis; 

are  carried  out,  where  appropriate,  on  the  basis  of  monitoring  and 
surveillance technologies generally used in the territory, for the purposes 
of addressing threats to public security or public policy as set out under 
ii); 

the  possibility  for  a  Member  State  to  carry  out  security  checks  on  persons 
carried out at transport hubs by the competent authorities under the law of each 
Member State, by their competent authorities or by carriers, provided that such 
checks are also carried out on persons travelling within a Member State; 

the possibility for a Member State to provide by law for an obligation to hold 
or carry papers and documents; 

the possibility for a Member State to provide by law for an obligation on third-
country  nationals  to  report  their  presence  on  its  territory  pursuant  to  the 
provisions  of  Article  22  of  the  Convention  implementing  the  Schengen 
Agreement  of  14  June  1985  between  the  Governments  of  the  States  of  the 
Benelux  Economic  Union,  the  Federal  Republic  of  Germany  and  the  French 
Republic  on  the  gradual  abolition  of  checks  at  their  common  borders  (‘the 
Schengen Convention’); 

b) 

c) 

d) 

e) 

checks  for  security  purposes  of  passenger  data  against  relevant  databases  on 
persons traveling in the area without controls at internal borders which can be 
carried out by the competent authorities under the applicable law.” 

(6) 

The following Article 23a is inserted: 

“Article 23a  
Procedure for transferring persons apprehended at the internal borders  

1.   This  Article  applies  to  the  apprehension  of  a  third-country  national  in  the 
vicinity  of  internal  borders,  in  circumstances  where  all  of  the  following 
conditions are fulfilled: 

a) 

b) 

c) 

d) 

the  third  country  national  concerned  does  not  or  no  longer  fulfils  the 
entry conditions laid down in Article 6(1);  

the third country national is not covered by the derogation  laid down in 
Article 6(5) point (a); 

the  third  country  national  is  apprehended  as  part  of  cross-border  police 
operational cooperation, in particular, during joint police patrols; 

there  are  clear  indications  that  the  third  country  national  has  arrived 
directly  from  another  Member  State,  on  the  basis  of  information 
including 
immediately  available 
statements from the person concerned, identity, travel or other documents 

the  apprehending  authorities, 

to 

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found  on  that  person  or  the  results  of  searches  carried  out  in  relevant 
national and Union databases.    

2.   The  competent  authorities  of  the  Member  State  may,  based  on  a  finding  that 
the third country national concerned has no right to stay on its territory, decide 
to immediately  transfer the person to the Member State from which the person 
entered or sought to enter, in accordance with the procedure set out in Annex 
XII. 

3.  Where  a  Member  State  applies  the  procedure  referred  to  in  paragraph  2,  the 
receiving  Member  State  shall  be  required  to  take  all  measures  necessary  to 
receive the third country national concerned in accordance with the procedures 
set out in Annex XII. 

4. 

From [one year following the entry into force of the Regulation] and annually 
thereafter, Member States shall submit to the Commission the data recorded in 
accordance with point 3 of Annex XII, regarding the application of paragraphs 
1, 2 and 3.”  

(7) 

At the end of the first paragraph of Article 24, the first paragraph is replaced by the 
following: 

“Member  States  shall  remove  all  obstacles  to  fluid  traffic  flow  at  road  crossing-
points  at  internal  borders,  in  particular  any  speed  limits  not  exclusively  based  on 
road-safety  considerations  or  required  for  the  use  of  the  technologies  referred  to  in 
Article 23, point (a)(iv).”   

(8) 

Article 25 is replaced by the following: 

“Article 25 
General framework for the temporary reintroduction or prolongation of border 
control at internal borders  

1.  Where, in the area without internal border controls, there is a serious threat to 
public  policy  or  internal  security  in  a  Member  State,  that  Member  State  may 
exceptionally reintroduce border controls at all or specific parts of its internal 
borders.  

A serious threat to public policy or internal security may be considered to arise 
from, in particular: 

(a) 

activities relating to terrorism or organised crime;  

(b) 

large scale public health emergencies;  

(c) 

a situation characterised by large scale unauthorised movements of 
third-country nationals between the Member States, putting at risk 
the overall functioning of the area without internal border control;  

(d) 

large  scale  or  high  profile  international  events  such  as  sporting, 
trade or political events. 

2. 

Border controls may only be introduced pursuant to Articles 25a and 28 where 
a  Member  State  has  established  that  such  a  measure  is  necessary  and 
proportionate, taking into account the criteria referred to in Article 26(1), and, 
in  case  such  controls  are  prolonged,  also  the  criteria  referred  to  in  Article 
26(2). Border controls may also be reintroduced in accordance with Article 29, 
taking into account the criteria referred to in Article 30.  

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In  all  cases,  border  controls  at  internal  borders  shall  be  reintroduced  as  a 
measure of last resort. The scope and duration of the temporary reintroduction 
of border control shall not exceed what is strictly necessary to respond to  the 
serious threat identified. 

3.  Where the same threat continues to persist, border controls at internal borders 

may be prolonged in accordance with Articles 25a, 28 or 29. 

The  same  threat  shall  be  considered  to  exist  where  the  justification  advanced 
by  the  Member  State  for  prolonging  border  controls  is  based  on  the 
determination of the continuation of the same threat that had justified the initial 
reintroduction of the border controls.” 

(9) 

A new Article 25a is inserted after Article 25: 

“Article 25a 

1. 

2. 

3. 

4. 

5. 

Procedure for cases requiring action due to unforeseeable or foreseeable events 

Where  a  serious  threat  to  public  policy  or  internal  security  in  a  Member  State  is 
unforeseeable  and  requires  immediate  action,  the  Member  State  may,  on  an 
exceptional basis, immediately reintroduce border control at internal borders. 

The  Member  State  shall,  at  the  same  time  as  reintroducing  border  control  under 
paragraph  1,  notify  the  Commission  and  the  other  Member  States  of  the 
reintroduction of border controls, in accordance with Article 27(1).  

For  the  purposes  of  paragraph  1,  border  control  at  internal  borders  may  be 
immediately  reintroduced  for  a  limited  period  of  up  to  one  month.  If  the  serious 
threat  to  public  policy  or  internal  security  persists  beyond  that  period,  the  Member 
State may prolong the border control at internal borders for further periods, leading 
to a maximum duration not exceeding three months.  

Where  a  serious  threat  to  public  policy  or  internal  security  is  foreseeable  in  a 
Member State, the Member State shall notify the Commission and the other Member 
States and the Commission in accordance with Article 27(1), at the latest four weeks 
before the planned reintroduction of border controls, or within a shorter period where 
the  circumstances  giving  rise  to  the  need  to  reintroduce  border  controls  at  internal 
borders become known less than four weeks before the planned reintroduction.  

For  the  purposes  of  paragraph  4,  and  without  prejudice  to  Article  27a(4),  border 
control  at  internal  borders  may  be  reintroduced  for  a  period  of  up  to  six  months. 
Where  the  serious  threat  to  public  policy  or  internal  security  persists  beyond  that 
period,  the  Member  State  may  prolong  the  border  control  at  internal  borders  for 
renewable periods of up to six months.  

Any prolongation shall be notified to the Commission and the other Member States 
in accordance with Article 27 and within the time limits referred to in paragraph 4. 
Subject to Article 27a(5), the maximum duration of border control at internal borders 
shall not exceed two years. 

6. 

The  period  referred  to  in  paragraph  5  shall  not  include  periods  referred  to  in 
paragraph 3.” 

(10) 

Article 26 is replaced by the following: 

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“Article 26 
Criteria for the temporary reintroduction and prolongation of border control at 
internal borders 

1. 

To  establish  whether  the  reintroduction  of  border  control  at  internal  borders  is 
necessary and proportionate in accordance with Article 25, a Member State shall in 
particular consider: 

(a) 

the appropriateness of the measure of reintroducing border controls at internal 
border,  having  regard  to  the  nature  of  the  serious  threat  identified  and  in 
particular,  whether  the  reintroduction  of  border  controls  at  internal  borders  is 
likely to adequately remedy the threat to public policy or internal security; 

(b) 

 the likely impact of such a measure on: 

– 

– 

movement  of  persons  within  the  area  without  internal  border 
control and 

the functioning of the cross-border regions, taking into account the 
strong social and economic ties between them. 

2. 

Where  a  Member  States  decides  to  prolong  the  border  control  at  internal  borders 
pursuant  to  Article  25a(5),  it  shall  also  assess  in  detail  whether  the  objectives 
pursued by such prolongation could be attained by: 

a) 

b) 

c) 

the use of alternative measures such as proportionate checks carried out in the 
context of the lawful exercise of powers as referred to in Article 23 point (a); 

the use of the procedure as referred to in Article 23a;  

forms  of  police  cooperation  as  provided  for  under  Union  law,  including  on 
matters such as joint patrols, joint operations, joint investigation teams, cross-
border hot pursuits, or cross-border surveillance. 

3. 

Where  border controls  at  internal  borders have been reintroduced or prolonged, the 
Member States concerned shall, where necessary, ensure that they are accompanied 
by  appropriate  measures  that  mitigate  the  impacts  resulting  from  the  reintroduction 
of  border  controls  on  persons  and  the  transport  of  goods,  giving  particular 
consideration to the cross-border regions.” 

(11) 

Article 27 is replaced by the following: 

“Article 27 
Notification of temporary reintroduction of internal border controls and risk 
assessment 

1. 

Notifications  by  Member  States  of  the  reintroduction  or  prolongation  of  internal 
border controls shall contain the following information:  

(a) 

(b) 

the  reasons  for  the  reintroduction  or  prolongation,  including  all  relevant  data 
detailing  the  events  that  constitute  a  serious  threat  to  its  public  policy  or 
internal security; 

the scope of the proposed reintroduction or prolongation, specifying  at  which 
part  or  parts  of  the  internal  borders  border  control  is  to  be  reintroduced,  or 
prolonged; 

(c) 

the names of the authorised crossing-points; 

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(d) 

the date and duration of the planned reintroduction or prolongation; 

(e) 

the  considerations  as  to  the  necessity  and  proportionality  referred  to  in 
Article 26(1) and, in the case of a prolongation, in Article 26(2);  

(f)  where appropriate, the measures to be taken by the other Member States. 

A notification may be submitted jointly by two or more Member States.  

The notification shall be provided in accordance with a template to be established by 
the  Commission  by  an  implementing  act  and  to  be  made  available  online.  That 
implementing  act  shall  be  adopted  in  accordance  with  the  examination  procedure 
referred to in Article 38(2).” 

Where  border  controls  have  been  in  place  for  six  months  in  accordance  with 
Article 25a(4), any subsequent notification for the prolongation of such controls shall 
include a risk assessment. The risk assessment shall present the scale and anticipated 
evolution of the identified serious threat, in particular how long the identified serious 
threat  is  expected  to  persist  and  which  sections  of  the  internal  borders  may  be 
affected,  as  well  as  information  regarding  coordination  measures  with  the  other 
Member States impacted or likely to be impacted by such measures.  

Where the reintroduction of border controls or its prolongation refers to  large scale 
unauthorised  movements  referred  to  in  Article 25(1)  point  (b),  the  risk  assessment 
shall  also  provide  information  on  the  scale  and  trends  of  such  unauthorised 
movements,  including  any  information  obtained  from  the  relevant  EU  agencies  in 
line  with  their  respective  mandates  and  data  analysis  from  relevant  information 
systems. 

The  Member  State  concerned  shall  upon  request  by  the  Commission,  provide  any 
further information, including on the coordination measures with the Member States 
affected by the planned prolongation of border control at internal borders as well as 
further  information  needed  to  assess  the  possible  use  of  measures  referred  to  in 
Article 23 and 23a . 

Member  States  submitting  a  notification  under  paragraphs  1  or  2  may,  where 
necessary and in accordance with national law, decide to classify all or parts of the 
notified information. 

Such classification shall not preclude access to information, through appropriate and 
secure  police  cooperation  channels,  by  the  other  Member  States  affected  by  the 
temporary reintroduction of border controls at internal borders.”  

2. 

3. 

4. 

5. 

(12) 

The following Article 27a is inserted: 

“Article 27a 
Consultation with the Member States and opinion of the Commission 

1. 

Following  receipt  of  notifications,  submitted  under  Article  27(1),  the  Commission 
may  establish  a  consultation  process,  where  appropriate,  including  joint  meetings 
between the Member State that is planning to reintroduce or prolong border control 
at internal borders, and the other Member States, especially those directly affected by 
such measures and the relevant Union agencies. 

The consultation  shall concern in  particular  the  identified threat  to  public policy or 
internal  security,  the  relevance  of  the  intended  reintroduction  of  border  controls 

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42 

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taking into account the appropriateness of alternative measures, as well as the ways 
of ensuring implementation of the mutual cooperation between the Member States in 
relation to the reintroduced border controls.  

The  Member  State  planning  to  reintroduce  or  prolong  border  control  at  internal 
borders shall take utmost  account  of the results of such consultation  when carrying 
out border control at the internal border. 

Following  the  receipt of notifications, submitted in  relation  to  the reintroduction or 
prolongation  of  border  controls  at  internal  borders,  the  Commission  or  any  other 
Member State may, without prejudice to Article 72 TFEU, issue an opinion, if, based 
on  the  information  contained  in  the  notification  and  risk  assessment,  where 
appropriate,  or  any  additional  information,  they  have  concerns  as  regards  the 
necessity or proportionality of the planned  reintroduction  or prolongation  of border 
control at internal borders. 

Following  receipt  of  notifications  submitted  in  relation  to  a  prolongation  of  border 
control at the internal border under Article 25a(4) which leads to the continuation of 
border controls at internal borders for eighteen months in total, the Commission shall 
issue an opinion on necessity and proportionality of such internal border controls. 

Where  an  opinion  referred  to  in  paragraphs  2  or  3  is  issued,  the  Commission  may 
establish  a  consultation  process  in  order  to  discuss  the  opinion  with  the  Member 
States.  Where  the  Commission  or  a  Member  State  issues  an  opinion  expressing 
concerns on the necessity or proportionality of reintroduced internal border controls 
the Commission shall launch such a process. 

Where a Member State considers that there  are exceptional situations justifying  the 
continued need for internal border controls in excess of the maximum period referred 
to in Article 25(5), it shall notify the Commission in accordance with Article 27(2). 
The new notification from the Member State shall substantiate the continued threat to 
public policy or internal security, taking into account the opinion of the Commission 
given pursuant to paragraph 3. The Commission shall issue a follow up opinion.” 

2. 

3. 

4. 

5. 

(13) 

Article 28 is replaced by the following: 

“Article 28 
Specific mechanism where the serious threat to public policy or internal security puts 
at risk the overall functioning of the area without internal border controls  

Where the Commission, establishes that the same serious threat to internal security or 
public  policy  affects  a  majority  of  Member  States,  putting  at  risk  the  overall 
functioning  of  the  area  without  internal  border,  it  may,  make  a  proposal  to  the 
Council to adopt an implementing decision authorising the reintroduction of border 
controls  by  Member  States  where  the  available  measures  referred  to  in  Articles  23 
and 23a are not sufficient to address the threat.  

The  decision  shall  cover  a  period  of  up  to  six  months  and  may  be  renewed,  upon 
proposal from the Commission, for further periods of up to six months as long as the 
threat persists, taking into account the review referred to in paragraph 5. 

1. 

2. 

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43 

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3. 

4. 

5. 

6. 

7. 

Where  Member  States  reintroduce  or  prolong  border  controls  because  of  the  threat 
referred  to  in  paragraph  1,  those  controls  shall,  as  of  the  entry  into  force  of  the 
Council decision, be based on that decision.  

The  decision  of  the  Council  referred  to  in  paragraph  1  shall  also  refer  to  any 
appropriate mitigating measures that shall be established at national and Union level 
in order to minimise the impacts caused by the reintroduction of border controls.  

The  Commission  shall  review  the  evolution  of  the  identified  threat  as  well  as  the 
impact of the measures adopted in accordance with the Council decision referred to 
in paragraph 1, with a view to assess whether the measures remain justified. 

Member  States  shall  immediately  notify  the  Commission  and  the  other  Member 
States  in  the  Council  of  a  reintroduction  of  border  controls  in  accordance  with  the 
decision referred to in paragraph 1. 

The Commission may issue a recommendation indicating other measures as referred 
to in Articles 23 and 23a that could complement internal border controls or be more 
suitable  to  address  the  identified  threat  to  internal  security  or  public  policy  as 
referred to in paragraph 1.” 

(14) 

Article 31 is amended as follows: 

a)  Article 31 becomes paragraph 1; 

b) 

the following paragraph 2 is added: 

‘2.  Where a Member State notifies the Commission and the other Member States 
of the reintroduction of border controls in accordance with Article 27(1), it shall at 
the same time inform the European Parliament and the Council of the following: 

a) 

b) 

c) 

d) 

the  details  of  the  internal  borders  where  border  control  is  to  be 
reintroduced; 

the reasons for the proposed reintroduction; 

the names of the authorised crossing-points; 

the date and duration of the planned reintroduction; 

e)  where appropriate, the measures to be taken by the other Member State. 

3.   The provision of information may be subject to classification of information by 
Member States pursuant to Article 27(4). 

Member States shall not be required to provide all the information referred to in the 
paragraph 2 in cases justified on public security grounds. 

The  classification  of  information  shall  not  preclude  information  from  being  made 
available  by  the  Commission  to  the  European  Parliament.  The  transmission  and 
handling  of  information  and  documents  transmitted  to  the  European  Parliament 
under this Article shall comply with rules concerning the forwarding and handling of 
classified information which are applicable between the European Parliament and the 
Commission.” 

(15) 

Article 33 is replaced by the following: 

“Article 33 
Report on the reintroduction of border control at internal borders 

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44 

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1. 

2. 

3. 

4. 

5. 

6. 

Within four weeks of the lifting of border control at internal borders, Member States 
which have carried out border controls at internal borders shall present a report to the 
European  Parliament,  the  Council  and  the  Commission  on  the  reintroduction  and, 
where applicable, the prolongation of border control at internal borders.  

Without  prejudice  to  the  first  paragraph  1,  where  border  controls  are  prolonged  as 
referred to in Article 25a(5), the Member State concerned shall submit a report at the 
expiry  of  twelve  months  and  every  twelve  months  thereafter  if  border  control  is 
exceptionally maintained. 

The  report  shall  outline,  in  particular,  the  initial  and  follow-up  assessment  of  the 
necessity of border controls and the respect of the criteria referred to in Articles 26, 
the  operation  of  the  checks,  the  practical  cooperation  with  neighbouring  Member 
States,  the  resulting  impact  on  the  movement  of  persons  in  particular  in  the  cross-
border  regions,  the  effectiveness  of  the  reintroduction  of  border  control  at  internal 
borders, including an ex-post assessment of the proportionality of the reintroduction 
of border control.  

The Commission shall adopt a uniform format for such report and make it available 
online. 

The Commission may issue an opinion on that ex-post assessment of the temporary 
reintroduction of border control at one or more internal borders or at parts thereof. 

The Commission shall present to the European Parliament and to the Council, at least 
annually,  a  report  on  the  functioning  of  the  area  without  internal  border  control 
entitled (‘State of Schengen report’). The report shall include a list of all decisions to 
reintroduce border control at internal borders taken during the relevant year. It shall 
also  include  information  on  the  trends  within  the  Schengen  area  as  regards  the 
unauthorised  movements  of  third  country  nationals,  taking  into  account  available 
information  from  the  relevant  Union  agencies,  data  analysis  from  relevant 
information  systems  and  an  assessment  of  the  necessity  and  proportionality  of  the 
reintroductions of border controls in the period covered by that report.” 

(16) 

In Article 39 (1), the following point (h) is added:  

“h)  Member  States  shall  notify  to  the  Commission  the  local  administrative  areas 
considered as the cross-border regions and any relevant changes thereto.” 

(17) 

The following Article 42b is added: 

“Article 42b 

Notification of cross-border regions 

By  [two  months  of  the  entry  into  force  of  this  Regulation]  at  the  latest,  Member 
States shall notify the Commission the areas of their territory considered as the cross-
border regions.  

Member States shall also inform the Commission of any relevant changes thereto.” 

(18) 

The following Annex XI is added: 

“ ANNEX XI 

Essential Travel 

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Essential functions or needs referred to in Article 2, point (23) refers to travel for any of the 
following function or needs:  

i. 

ii. 

Healthcare professionals, health researchers, and elderly care professionals; 

Frontier workers; 

iii.  Transport personnel; 

iv.  Diplomats,  staff  of 

international  organisations  and  people 

invited  by 
international  organisations  whose  physical  presence  is  required  for  the  well-
functioning  of  these  organisations,  military  personnel  and  humanitarian  aid 
workers and civil protection personnel in the exercise of their functions; 

v. 

Passengers in transit; 

vi.  Passengers travelling for imperative family reasons; 

vii.  Seafarers; 

viii.  Persons in need of international protection or for other humanitarian reasons.” 

(19) 

A new Annex XII is added: 

“ANNEX XII 

PART A 

1. 

2. 

Procedure for transferring persons apprehended at the internal borders 

Decisions shall state the grounds for finding that a person has no right to stay. They 
shall take effect immediately. 

The  decision  shall  be  issued  by  means  of  a  standard  form,  as  set  out  in  Part  B, 
completed by the competent national authority. 

The  completed  standard  form  shall  be  handed  to  the  third-country  national 
concerned,  who  shall  acknowledge  receipt  of  the  decision  by  signing  the  form  and 
shall be given a copy of the signed form.  

Where  the  third-country  national  refuses  to  sign  the  standard  form,  the  competent 
authority shall indicate this refusal in the form under the section ‘comments’. 

3. 

The national authorities issuing a refusal decision shall record the following data: 

a) 

to the extent that these can be established by them, the identity and nationality 
of the third-country national concerned,  

b) 

the references of the identity document, if any,  

c)  where  available,  copies  of  any  documents  or  data  relating  to  the  identity  or 
nationality  of  the  third  country  national  concerned,  in  combination  with  the 
relevant national and Union databases. 

d) 

e) 

f) 

the grounds for refusal,  

the date of refusal,  

the Member States to which the third country national was sent back. 

4. 

The national authorities issuing a refusal decision shall collect the following data: 

a) 

the number of persons refused entry;  

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5. 

6. 

7. 

b) 

c) 

d) 

the number of persons refused stay;  

the number of persons sent back;  

the Member State(s) to which persons were sent back; 

e)  where  this  information  is  available,  the  nationality  of  the  third  country 

f) 

g) 

nationals apprehended; 

the grounds for refusal of entry and stay; 

the  type  of  border  as  specified  in  Article  2  point  1  of  Regulation  (EU) 
2016/399 at which the third country nationals were sent back. 

Persons refused entry or the right to stay shall have the right to appeal. Appeals shall 
be conducted in accordance with national law. A written indication of contact points 
able  to  provide  information  on  representatives  competent  to  act  on  behalf  of  the 
third-country  national  in  accordance  with  national  law  shall  also  be  given  to  the 
third-country national in a language that they understand or are reasonably supposed 
to understand. Lodging such an appeal shall not have suspensive effect. 

The  authorities  empowered  under  national  law  shall  ensure  that  the  third-country 
national subject to a refusal decision is transferred to the competent authorities of the 
neighbouring  Member  State  immediately  and  within  24  hours  at  the  latest.  The 
authorities  empowered  under  national  law  in  the  neighbouring  Member  State  shall 
cooperate with the authorities of the Member State to that end. 

If  a  third-country  national  who  has  been  subject  to  a  decision  referred  to  in 
paragraph 1  is  brought  to  the  border  by  a  carrier,  the  authority  responsible  locally 
may: 

(a) 

order the carrier to take charge of the third-country national and transport him 
or her without delay to the Member State from which he or she was brought; 

(b)  pending onward transportation, take appropriate measures, in compliance with 
national law and having regard to local circumstances, to prevent third-country 
nationals who have been refused entry from entering illegally. 

Standard form for transferring persons apprehended at the internal borders  

PART B 

Name of State 

Logo of State (Name of Office) 

____________________________ 

_________________________________________________________________________(1) 

TRANSFER PROCEDURE AT THE INTERNAL BORDER 

On _________________________  at  (time)  ___________  at  the  location  (indicate  type  of  the  internal  border  nearby  or  other  relevant 
information related to the apprehension by a joint patrol)___________________________________________ 

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We, the undersigned, __________________________________________________________________________________have before us: 

Personal data (subject to availability) 

Surname_______________________________________________________ First name _________________________________________ 

Date of birth__________________________________ Place of birth ____________________________________________ Sex _________ 

Nationality ________________________________________ Resident in _____________________________________________________ 

Type of identity document ________________________________________________ number___________________________________ 

Issued in _____________________________________________ on _________________________________________________________ 

Visa 
________________________________________________ 

number, 

any 

if 

________________________ 

type 

_________________ 

issued 

by 

Valid from ________________________ until ________________________ 

For a period of ________ days: __________________________________________________________________ 

Coming from ___________________ by means of __________________ (indicate means of transport used, e.g. flight number), he/she is 
hereby informed that he/she has no right to stay in the country and will be transferred to ______________________ pursuant to (indicate 
references to the national la in force), for the following reasons: 

□ (A) has no valid travel document(s) 

□ (B) has a false/counterfeit/forged travel document 

□ (C) has no valid visa or residence permit 

□ (D) has a false/counterfeit/forged visa or residence permit 

□ (E) has no appropriate documentation justifying the purpose and conditions of stay 

     The following document(s) could not be provided: ___________________________________________________________________ 

□ (F) has already stayed for 90 days in the preceding 180-day period on the territory of the Member States of the European Union 

□ (G) does not have sufficient means of subsistence in relation to the period and form of stay, or the means to return to the county of 

origin or transit 

□ (H) is a person for whom an alert has been issued for the purposes of refusing entry 

□ in the SIS 

□ in the national register 

□  (I)  is  considered  to  be  a  threat  to  public  policy,  internal  security,  public  health  or  the  international  relations  of  one  or  more  of  the 

Member States of the European Union (each State must indicate the references to national law relating to such transfer) 

Comments 

□ The person concerned declined to sign the form.  

Person Concerned                                                                                                      Officer responsible for checks 

The  person  concerned  may  appeal  against  the  decision  that  he/she  has  no  right  to  stay  as  provided  for  in  national  law.  The  person 
concerned receives a copy of this document (each State must indicate  the references to the  national law  and procedure relating  to  the 
right of appeal).  

Article 2 

Amendment to Directive 2008/115/EC  

1. Article 6(3) of Directive 2008/115/EC is replaced by the following: 

“3.  Member  States  may  refrain  from  issuing  a  return  decision  to  a  third-country  national 
staying  illegally  on  their  territory  if  the  third-country  national  concerned  is  taken  back  by 
another  Member  State  in  accordance  with  the  procedure  provided  for  in  Article  23a  of  the 

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Regulation (EU) 2016/399 of the European Parliament and of the Council* or under bilateral 
agreements or arrangements.  

The Member State which has taken back the third-country national concerned in accordance 
with  the  first  subparagraph  shall  issue  a  return  decision  in  accordance  with  paragraph  1.  In 
such cases, the derogation laid down in the first subparagraph shall not apply. 

Member States shall without delay notify any existing, amended or new bilateral agreements 
or arrangements to the Commission.” 

* 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) (OJ L 077 23.3.2016, p. 1). 

Article 3 

Transposition of amendment to Directive 2008/115/EC 

2.  Member  States  shall  adopt  and  publish,  by  [6  months  from  entry  into  force  of  this 
Regulation]  at  the  latest,  the  laws,  regulations  and  administrative  provisions  necessary  to 
comply with Article 2. They shall forthwith communicate to the Commission the text of those 
provisions. 

They shall apply those provisions from [6 months from entry into force]. 

When Member States adopt those provisions, they shall contain a reference to Article 2 of this 
Regulation  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

Article 4 

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

However, Article 1, point 6, shall apply from [the date at which the amendments provided for 
in Article 2 apply in the Member States]. 

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

Done at Strasbourg, 

For the European Parliament 
The President 

For the Council 
The President 

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