REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL as regards the reinforcement of checks against relevant databases at external borders introduced with Regulation (EU) 2017/458 amending Regulation (EU) 2016/399
Date: 2022-05-24
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU national, Schengen Information System, biometrics, border control, external border of the EU, fight against crime, foreign national, organised crime, passport, terrorism

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 24.5.2022  COM(2022) 302 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL as regards the reinforcement of checks against relevant databases at external borders introduced with Regulation (EU) 2017/458 amending Regulation (EU) 2016/399             
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

 as regards the reinforcement of checks against relevant databases at external borders 
introduced with Regulation (EU) 2017/458 amending Regulation (EU) 2016/399 

I. Introduction  

In response to the terrorist attacks in Copenhagen in February 2015, in Paris in January and 
November  2015  and  in  Brussels  in  March  2016,  Parliament  and  the  Council  adopted 
Regulation  (EU)  2017/458  of  15 March 20171  (the  Regulation)  amending  Regulation  (EU) 
2016/3992 (Schengen Borders Code). This amendment concerned Article 8 on ‘Border checks 
on  persons’  and  strengthened  checks  of  all  persons  entering  or  exiting  the  Schengen  area 
without controls at internal borders (“Schengen area”).  

Under  the  Regulation,  the  Member  States  and  the  Schengen  Associated  Countries  (“the 
Member  States”)  have  to  run  systematic  checks  against  relevant  databases  on  all  persons 
crossing  the  EU’s  external  borders.  This  obligation  already  existed  for  checks  on  third-
country  nationals,  but  not  for  persons  enjoying  the  right  of  free  movement  under  EU  law. 
Under the  amended  Regulation,  also  persons enjoying the right  of  free  movement  undergo: 
(i) verification of their identity and nationality and the authenticity and validity of their travel 
documents;  and  (ii)  verification  that  they  are  not  considered  a  threat  to  the  public  policy, 
internal security, public health or international relations of any Member State.  The databases 
to  be  searched  include  the  Schengen  Information  System  (SIS),  Interpol’s  Stolen  and  Lost 
Travel Database (SLTD), and other relevant national databases.  

The  change  was  made  after  it  became  apparent  that  many  terrorist  fighters  were  also  EU 
citizens  who,  enjoying  the  freedom  of  movement,  were  previously  only  subject  to  limited 
border checks at the external borders (a visual identity check not allowing for their potential 
identification  as  security  threats,  and  checks  against  databases  were  run  only  non-
systematically).  

The  Regulation  makes  it  possible  to  temporarily  reduce  systematic  checks  of  databases,  by 
checking  relevant  databases  only  on  a  targeted  basis,  if  systematic  checks  ‘would  have  a 
disproportionate impact on the flow of traffic’3. Such derogations require notification to the 
Commission and the European Border and Coast Guard Agency, as well as submission of a 
risk assessment and subsequent updates, if applicable, to the Agency.  

1   Regulation  (EU)  2017/458  of  the  European  Parliament  and  of  the  Council  of  15  March  2017  amending 
Regulation  (EU)  2016/399  as  regards  the  reinforcement  of  checks  against  relevant  databases  at  external 
borders (OJ L 74, 18.3.2017, p. 1). 

2   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). 

3   Article 8 (2a) of the Schengen Borders Code. 

1 

 
 
 
 
                                                           
For air border crossing points, this possibility applied only during a 6-month transition period 
after the Regulation came into force. In justified cases, Member States could prolong this by 
up to 18 months4 (leading to a total maximum transition period of 24 months).  

This  report  gives  an  overview  on  the  implementation  and  impact  of  introducing  such 
systematic  checks  on  persons  with  the  right  of  free  movement  under  EU  law,  taking  into 
account  the  outcomes  of  systematic  security  checks  in  the  Schengen  area,  particularly 
regarding  terrorist  fighters.  It  also  considers  the  overall  costs  for  Member  States  and 
passengers,  identifies  challenges  and  shortcomings  in  the  Regulation’s  implementation  and 
analyses the impact of the newly introduced rules. 

This  report  was  due  to  Parliament  and  the  Council  by  8 April 20195.  However,  as  the 
Regulation  allowed  Member  States  to  delay  introduction  of  such  systematic  checks  at  their 
air borders for up to 24 months (i.e. by the time the report was due)6 and as 13 Member States 
used this possibility, at the time the report was due the data available would have covered a 
period when only some Member States were already fully applying the Regulation.  

This  report  is  mainly  based  on  a  study  by  an  external  contractor  for  the  European 
Commission7  covering the first  2  years of the Regulation’s application, i.e. 7 April 2017  to 
7 April 2019. Due to significant gaps in the data available or provided by the Member States 
to the contractor, the figures available for the study are based in part on estimates and should 
be interpreted as indicating general trends. In addition to the study, when drafting this report 
the Commission used other sources covering a longer period of time. These include the First 
Multiannual  Evaluation  Programme  (2015-2019)  on  the  Functioning  of  the  Schengen 
Evaluation and Monitoring Mechanism8 and national reports submitted to the Commission by 
Member States that applied derogations.  

Furthermore,  as  observed  in  the  Commission’s  regular  assessments  and  data  provided  by 
Frontex,  cross-border  travel  dropped  dramatically  in  2020  and  2021  due  to  the  COVID-19 
pandemic (about -69% and -67% respectively, compared to 2019). Less passenger traffic and 
tightened  controls  to  contain  the  virus’s  spread  meant  that  Member  States  felt  less  need  to 
derogate  from  systematic  checks.  Therefore,  no  Member  State  notified  the  Commission  of 
their intention to use derogations during this period.  

Thanks to the roll-out of vaccination campaigns and the successful adoption of the EU Digital 
COVID Certificate (EUDCC)9, cross-border passenger traffic has progressively increased as 

4   Article 8 (2d) of the Schengen Borders Code. 
5   Article 8 (2c) of the Schengen Borders Code. 
6   Article 8 (2d) of the Schengen Borders Code. 
7   Assessment  of  the  implementation  of  Regulation  (EU)  2017/458  amending  Regulation  (EU)  2016/399  as 

regards the reinforcement of checks against relevant databases at external borders, February 2020. 

8   Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the  Functioning  of  the 
Schengen  Evaluation  and  Monitoring  Mechanism  pursuant  to  Article  22  of  Council  Regulation  (EU)  No 
1053/2013 – COM(2020) 779 final – 25.11.2020. 

9   Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework 
for  the  issuance,  verification  and  acceptance  of  interoperable  COVID-19  vaccination,  test  and  recovery 
certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic and 
Regulation (EU) 2021/954 of the European Parliament and of the Council of 14 June 2021 on a framework 

2 

 
 
 
                                                           
 
of beginning of the second semester of 2021. The EUDCC played a crucial role in facilitating 
travel in the EU and has also been pivotal in relaunching travel from and to the EU, despite it 
legally  only  regulating  “inbound”  travel  to  the  EU.  This  increasing  trend  is  expected  to 
continue, and a new peak should be reached in the 2022 summer holiday season.  

Given  all  the  above,  this  report  will  take  stock  of  the  situation,  draw  the  necessary 
conclusions and recommend any appropriate steps as concerns the application of Article 8 of 
the  Schengen Borders Code. 

II. Implementation of Article 8(2) of the Schengen Borders Code 

II.1. The Regulation’s practical implications  

Before  the  Regulation’s  entry  into  force,  targeted,  non-systematic  checks  against  databases 
on persons with the right of free movement under EU law were conducted unevenly by the 
Member  States.  Based  on  data  gathered  in  the  external  study  underlying  this  report,  seven 
Member  States  already  checked  such  persons  systematically  at  all  their  borders  before  the 
Regulation’s entry into force. While other Member States used systematic checks on persons 
with  the  right  of  free  movement  in  limited  ways,  e.g.  only  temporarily,  at  certain  border 
crossing  points,  or  at  certain  border  sections/borders  with  certain  third  countries,  five 
Member  States  declared  never  having  used  systematic  checks  at  any  border  crossing  point 
before Regulation (EU) 2017/458 came into force. 

To  meet  the  Regulation’s  obligations,  most  Member  States  updated  their  operational 
guidelines  for  border  guards.  As  systematic  checks  were  already  carried  out  on  non-EU 
citizens, no major changes to their organisational structure, work organisation and processes 
were  necessary.  Some  10  Member  States  also  updated  their  guidelines  on  risk-profiling  of 
passengers for first line border officers.  

From  2017  to  2019,  18  Member  States  hired  additional  staff,  11  of  them  to  meet  the  new 
requirements  under  the  Regulation.  Some  Member  States  used  this  opportunity  to  redeploy 
and retrain  existing staff. Most Member States  have modified  (and  continue to  modify) the 
existing  infrastructure  at  border  crossing  point  to  accommodate  the  implementation  of 
systematic  checks.  According  to  the  border  guards  interviewed  in  the  framework  of  the 
external study, the infrastructure upgrades were generally part of wider reforms often seeking 
to improve the capacity of airports, ports and border crossings to handle the increased volume 
of  traffic  that  many  Member  States  have  seen  in  the  years  prior  to  the  pandemic.  These 
changes have, nevertheless, reportedly facilitated the implementation of systematic checks.   

for  the  issuance,  verification  and  acceptance  of  interoperable  COVID-19  vaccination,  test  and  recovery 
certificates (EU Digital COVID Certificate) with regard to third-country nationals legally staying or residing 
in the territories of Member States during the COVID-19 pandemic. 

3 

 
 
 
 
                                                                                                                                                                                     
Table 1: Changes to border crossing point infrastructures (2017 – 2019)10 

Changes made to implement the 
Regulation 

Changes made unrelated to the 
Regulation 

Additional passenger 
lanes 

Air: Cyprus, Spain 

Land: Lithuania (planned), Latvia 
(planned) 

Air: Bulgaria, Croatia, Cyprus, 
Slovakia 

Land: Croatia, Greece 

Additional control 
booths 

Sea: Hungary, Italy, Spain  

Air: Slovakia, Iceland 

All: France 

Overall expansion of 
Border Crossing Points 

Air: Hungary, Italy, Lithuania 

Sea: Cyprus 

Air: Croatia, Finland, Germany, 
Hungary, Iceland 

Sea: Germany 

Land: Croatia, Bulgaria 

All: Hungary 

New queuing 
arrangements11 

Air: Bulgaria, Denmark, Hungary, 
Latvia 

- 

Land: Bulgaria 

All: Italy, Spain 

Stricter separation of 
EU/non-EU/Automated 
Border Control lanes 

Air: Austria, Cyprus12, Czechia, 
Denmark, Latvia 

- 

Sea: Cyprus 

All: Croatia, Italy, Spain  

Source: table based on Border Guards Survey and interviews (Border Guard headquarters and staff) 

Most  Member  States  also  invested  in  additional  equipment,  mostly  in  response  to  the 
Regulation,  mainly  additional  Automated  Border  Control  (ABC)  gates,  which  are  the  most 
efficient way to reduce additional waiting times while keeping staff costs down (one trained 
person can guard up to six ABC gates). Other acquisitions included devices for mobile border 
checks,  passport  reading  machines  and  fingerprint  scanners.  Several  Member  States  also 
invested in their IT systems to accommodate the Regulation’s needs. There were also minor 
adaptions  of  the  processes  and  infrastructure,  e.g.  on  management  of  passenger  flows, 
introducing additional passenger lanes and control booths, stricter separation of EU and non-
EU lanes.  

10   The period observed covers the first two years of the Regulation’s application, i.e. 7 April 2017 to 7 April 

2019, when derogations from systematic checks at air borders were still permitted.  

11   Including the ones foreseen under Art. 10(4) of Regulation 2016/399. 
12   At Limassol port, new port queuing arrangements are not always applied. 

4 

 
 
 
 
 
                                                           
Figure 1.  Investments made by Member States due to the implementation of the Regulation 

(2017-2019) 

Source: Calculation based on survey among Border Guard authorities 

Based  on  data  and  information  gathered  by  the  Commission,  in  particular  during  the 
Schengen  Evaluation  visits,  despite  these  tangible  improvements,  the  following  conclusion 
was  drawn:  ‘Though  the  overall  quality  of  controls  at  the  external  borders  is  good,  it  still 
varies  in  and  among  Member  States.  Most  countries  face  challenges  related  to  resources, 
training  and  operational  planning  to  ensure  uniform  and  systematic  checks  at  all  external 
border  crossing  points,  and  efficient  external  border  surveillance’13.  These  challenges  also 
included infrastructural limitations (e.g. the lack of border guard booths at airports) in half of 
the Member States, particularly during the summer and holiday seasonal peaks. Additionally, 
some  Member  States  still  face  shortages  of  appropriate  equipment,  in  particular  to  check 
travellers’  fingerprints  against  the  data  in  their  travel  documents,  which  is  crucial  to  verify 
the traveller’s identity. 

II.2. Time-limited exceptions  

Derogations under Article 8 of the Schengen Borders Code  

Article  8(2d)  of  Regulation  (EU)  2016/399  allows  for  derogation  from  the  principle  of 
systematic  checks  against  relevant  databases14  regarding  persons  enjoying  the  right  of  free 
movement  when  two  cumulative  conditions  are  fulfilled:  (i) the  checks  against  the  relevant 
databases  at  specified  border  crossing  points  would  have  a  disproportionate  impact  on  the 
flow of traffic; and (ii) the Member State concerned prepares a risk assessment demonstrating 
that applying checks on a targeted basis would not lead to a security risk. 

While  derogations  on  systematic  checks  are  still  possible  for  land  and  sea  borders, 
derogations at air borders were limited to a maximum transition period of 6 months from the 

13   Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the  Functioning  of  the 
Schengen  Evaluation  and  Monitoring  Mechanism  pursuant  to  Article  22  of  Council  Regulation  (EU)  No 
1053/2013 – COM(2020) 779 final – 25.11.2020 (page 7). 

14   Articles 8(2a) and 8(2b) of the Schengen Borders Code. 

5 

 
 
 
 
 
                                                           
Regulation’s entry into force15. Member States could extend this period by an additional 18 
months, until 7 April 2019, in view of exceptional infrastructural difficulties16. 

Based on notifications sent by Member States to the Commission, 13 Member States applied 
the temporary 6-month derogation between April and October 2017. Among these, 7 Member 
States extended the derogation by a maximum further 18 months. Four Member States further 
notified  the  Commission  that  they  were  applying  the  derogation  at  land  borders,  three  of 
those in view of the 2019/2020 holiday season.  

Table 2: Notifications sent by Member States on derogations from the principle of systematic 
checks against relevant databases 

Used derogations 
within first 6 months 
(same rules for land and air 
borders) 

13 

Applied derogations 
for air borders beyond 
6 months  
(until 7/4/2019) 
7 

Used derogations at 
land/sea borders 
beyond 7/4/2019 

5 

Currently have 
derogations in use at 
land/sea borders 
(as of April 2022)17 
7 

# 
AT 
BE 
BG 
CY 
EL 
FI 
HR 
HU 
IT 
LV 
SI 
IS 
NO 

Table based on Member State notifications to the Commission 

Member States that decide to carry out checks on a targeted basis at specific border crossing 
points are required to report every 6 months to the Commission and the European Border and 
Coast  Guard  Agency  (the  Agency)  on  the  application  of  the  checks.  The  following 
conclusions  were  drawn  from  the  reports  submitted  to  the  Commission  by  the  13  Member 
States between 2017 and 2020: 

15   Article 8(2d) of the Schengen Borders Code. 
16   Second subparagraph of Article 8(2d) of the Schengen Borders Code. 
17   Since  the  Regulation’s  adoption,  Croatia,  Finland,  Greece,  Hungary,  Latvia  and  Norway  sent  notifications 
without  indicating  until  when  they  were  valid.  During  an  expert  group  meeting  on  ‘Management  of  the 
External Borders’ held on 28 March 2022, the  Commission asked these Member States to confirm if their 
open-ended notifications were still valid. Finland replied that it had not recently used the possibility under 
Article 8(2a) of the Schengen Borders Code to carry out only targeted (and not systematic) checks at certain 
border crossing points, but that its open-ended notification remained valid and could still be used. In April 
2022,  Croatia  and  Slovenia  notified  the  Commission  of  their  intention  to  use  the  possibility  offered  by 
Article 8(2a) of the Schengen Borders Code for a period of 5 months. The other Member States had not yet 
replied to the Commission when this report was drafted.  

6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
  Eight Member States reported that the targeted checks were only carried out in case of 
increased  flows  of  passengers  and  to  ensure  timely  and  smooth  crossing  of  the 
borders, while guaranteeing an adequate level of security; 

  Three Member States stated that there had been no significant decrease in the number 

of hits in the SIS due to the introduced targeted checks; 

  Five  Member  States  reported  that  the  temporary  introduction  of  targeted  checks 
against the databases had not increased the risks related to the public policy, internal 
security,  public  health  or  international  relations  of  any  Member  State  and  had  not 
affected the protection of EU`s external borders; and  

  Four Member States stated that the scope and duration of targeted checks against the 

databases had not exceeded what was strictly necessary. 

During the COVID-19 pandemic no Member State notified the Commission of their intention 
to use derogations during this period. By 15 May 2022, seven Member States had notified the 
Commission  of  the  possibility  for  a  temporary  suspension  of  the  reinforcement  of  checks 
against relevant databases, in case of need. These Member States will be able to resort to the 
possibility only when systematic checks create disproportionate impact on the waiting times 
at a particular border crossing point or on the lives of the local population along the border. 
Moreover, this derogation only applied to persons enjoying the right of free movement under 
EU law.  

Relaxations (Article 9 of the Schengen Borders Code) 

The possibility to apply derogations as described above still has no bearing on the application 
of Article 9 of the Schengen Borders Code, which allow border checks to be relaxed if ‘the 
waiting  time  at  the  border  crossing  point  becomes  excessive’  due  to  ‘exceptional  and 
unforeseen circumstances’. When relaxations occur, controls are conducted on a sample, non-
systematic basis and priority is given to controls on entries over those on exits. Although this 
article was not part of the Regulation, some Member States interpret it as closely linked to the 
practical  implementation  of  systematic  checks,  even  though  the  two  concern  very  different 
scenarios.  

During the first 2 years of the Regulation being in force, Member States may not always have 
made a clear-cut distinction between derogations under Article 8(2a) of the Schengen Borders 
Code and relaxations under Article 9 of the Schengen Borders Code. This is likely because 
the  baseline  scenario  for  derogations  from  systematic  checks  under  Article  8(2a) 
(‘disproportionate impact on the flow of traffic’) is similar to that for border relaxations under 
Article 9 (‘traffic of such intensity that the waiting time at the border crossing point becomes 
excessive’) of the Schengen Borders Code. 

Derogations and Relaxations next steps 

While  both  provisions  focus  on  the  practical  impact  on  traffic,  Article  9  further  states  that 
a) such  situation  needs  to  be  caused  by  exceptional  and  unforeseeable  events,  and  b)  all 
resources  have  been  exhausted  as  regards  staff,  facilities  and  organisation.  Relaxations  are 

7 

 
 
 
less prescriptive then derogations and their use is left to the assessment of the border guard in 
charge of the respective border crossing points without any formal procedure. Only a yearly 
ex  post  report  on  the  relaxations  applied  during  the  year  has  to  be  submitted  to  the 
Commission. 

Derogations under Article 8(2a) of the Schengen Borders Code require submission of a prior 
risk  assessment  to  the  Agency,  which  needs  also  to  be  regularly  updated  if  the  derogations 
continue,  immediate  notification  of  the  other  Member  States,  the  Commission  and  the 
Agency, as well as half-year reports to the Commission and the Agency.  

According to the information gathered for this report, derogations and relaxations have been 
used  inconsistently  among  Member  States,  with  a  considerable  number  using  border 
relaxations under Article 9 of the Schengen Borders Code in cases where Article 8(2a) of the 
Schengen Borders Code with its stricter formal requirements would have been the appropriate 
tool18. For three Member States, the use of relaxations was a deliberate decision, while in four 
others, it seems to have been the result of lack of clarity on the appropriate instrument to use. 
At the time the study was conducted, the national provisions of two Member States expressly 
prohibited  the  use  of  derogations  (Article  8(2a))  due  to  the  related  high  administrative 
burden.  

iii)  specific 

After receiving the first notifications on the use of Article 8(2a), the Commission sent letters 
to  the  Schengen  States  concerned,  further  clarifying:  i)  the  conditions  for  the  use  of 
derogations;  ii)  the  steps  to  be  followed  by  the  Member  State  wishing  to  make  use  of  this 
the 
instrument; 
notifications19.On  the  requirements  to  make  use  of  derogations  to  systematic  checks,  the 
study  found  that  in  most  Member  States,  counter-terrorism  and  counter-organised  crime 
authorities were not  or only indirectly involved in  preparing the risk assessment.  Given  the 
very  objective  of  introducing  systematic  checks,  stronger  involvement  by  counter-terrorism 
and counter-organised crime authorities could enhance the risk assessments’ quality.  

the  Member  State  needed 

to  address 

issues 

that 

in 

Member  States  consistently  stressed  the  need  for  further  clarification  on  the  distinction  of 
these provisions for Member States’ national border guard authorities. The planned revision 
of the Practical Handbook for Border Guards20 will clarify the difference between relaxation 
and targeted checks, to tackle the inconsistent use of both instruments by Member States and 

18   Since the extended transition period, which allowed derogations at air border crossing points under Article 8 
(2d) of the Schengen Borders Code, expired in April 2019, at air border crossing points only relaxations are 
possible. However, this possible confusion still concerns land and maritime border crossing points. 

19   The Commission sent letters to twelve of the Member States that had made use of the derogations in April 
2017. Five Member States replied satisfactorily providing the further clarification required. Follow-up letters 
were  later  sent  in  July  2017  to  the  seven  Member  States  that  had  not  replied  to  the  first  letters.  These 
exchanges  were  taken  into  account  in  the  preparation  of  the  revised  “Practical  Handbook  for  Border 
Guards”. 

20   With Commission Recommendation C(2019)7131 establishing the "Practical Handbook for Border Guards”, 
the  Commission  committed  itself  to  ensuring  regular  updates  of  the  Handbook.  This  first  update  will 
incorporate a number of changes to the Handbook, resulting from recent ECJ jurisprudence, adoption of new 
legislation  and  other  relevant  recent  events.  It  will  also  be  based  on  meetings  of  the  Expert  Group 
"Management of the External Borders", that took place in Q4 2021 and Q1 2022. 

8 

 
 
 
                                                           
avoid  that  Member  States  –  incorrectly  –  use  relaxation  of  border  controls  instead  of 
derogations. Frontex’s development of a template for the risk assessment improved the risk 
assessment’s  quality  and  value  as  a  basis  for  informed  decisions  on  derogations  by  the 
Member  States  concerned.  It  now  also  provides  a  sound  basis  for  the  Agency  to  identify 
possible  concerns.  This  further  guidance  should  also  mean  that  data  provided  by  Member 
States in future will be of better quality and more complete. 

Member  States  also  asked  for  guidance  on  the  assessment  of  ‘excessive  waiting  time’. 
Determining what is an ‘excessive’ waiting time is an assessment which depends on multiple 
factors  and  is  made  by  the  border  guard  in  command  of  the  border  crossing  point.  As 
relaxations are an exception from systematic checks and may undermine the objectives of the 
Schengen  Borders  Code,  harming  security  in  the  Schengen  area,  this  assessment  should  be 
guided  by  common  criteria.  In  the  forthcoming  revision  of  the  Practical  Handbook  for 
Border  Guards,  the  Commission  will  recommend  practical  approaches  for  complying  with 
the  rule  foreseen  in  the  Schengen  Borders  Code  that  relaxation  may  only  be  used  if  all 
available resources have been used to the maximum extent possible and if the consequences 
of an unforeseen event lead to (or are likely to lead to) excessive waiting times. 

Furthermore,  preventive  safeguards  to  ensure  compliance  with  the  respective  legal 
requirements  might  be  useful  as  well.  In  this  regard,  the  proportion  of  Member  States  not 
reporting relaxations to the Commission (two thirds during the period covered by the study) 
suggests  that  the  reporting  obligations  might  not  be  observed.  This  also  deserves  further 
attention  and  will  be  addressed  in  the  forthcoming  revision  of  the  Practical  Handbook  for 
Border Guards.  

III. Effectiveness of systematic checks 

As prevented threats cannot always be counted and sometimes can only be inferred, putting 
precise figure on the effect  of  the introduction of systematic checks on all persons entering 
and  exiting  the  Schengen  area  is  difficult.  The  Regulation’s  effectiveness  in  preventing 
threats  to  the  Schengen  area’s  internal  security  must  therefore  be  assessed  based  on 
measurable indicators and expert opinions.  According to  the border guards consulted in the 
framework of the  external  study, the benefits  from  the introduction of systematic checks at 
external-Schengen borders as regards crime prevention included: 

- 

- 

-  Better  and  more  comprehensive  intelligence  collected  on  persons  involved  in 
organised crime owing to the increased number of Article 36(2) SIS II Decision hits; 
Increased  detection  and  execution  of  Schengen  Information  System  (SIS)  alerts  for 
arrest, extradition and surrender at border crossing points; 
Increased detection of individuals with entry bans related to criminal charges in SIS 
and/or national databases; 
Increased detection of fraudulent usage of identity documents (lost, stolen or revoked) 
owing  to  the  increased  number  of  Interpol’s  Stolen  and  Lost  Travel  Documents 
database (SLTD) hits; 
Improved information sharing between EU Member States on organised crime cases. 

- 

- 

9 

 
 
 
Concerning counter-terrorism policies, the benefits included:  

-  Better and more comprehensive intelligence collected on terrorist fighters and persons 
involved in terrorist-related activities, owing to the increased number of hits related to 
alerts under Article 24, Article 26, Article 36(2) and Article 36(3) SIS II Decision; 
- 
Improved use of the Schengen Information System (SIS) on terrorism-related cases; 
-  Each  of  these  effects  of  systematic  checks  could  facilitate  the  work  of  law 
enforcement  authorities  on  terrorism-related  cases  and  thus  contribute  to  the 
prevention of terrorist attacks.  

III.1. The Regulation’s impact on countering terrorism and organised crime 

As  a  preliminary  point,  it  must  be  highlighted  that  no  data  on  the  share  of  alerts/hits 
concerning  persons  enjoying  free  movement  under  Union  law  compared  to  third  country 
nationals  is  publicly  available.  The  below  data  refer  to  all  persons  crossing  the  external 
borders. This  lack of separation in  the statistics21  between persons enjoying free movement 
and third-country nationals makes it obviously difficult to draw reliable conclusions. 

According  to  the  study  carried  out  by  the  external  contractor,  between  2016  and  2018,  the 
overall  number  of  alerts  concerning  persons  in  the  Schengen  Information  System  (SIS) 
increased by 13%. Most significant (63%) was the increase in  alerts regarding discreet  and 
specific checks (Article 36 SIS II Decision22). Similarly, the number of hits in SIS increased 
for the 12 Member States analysed in depth23 in the external study.  

21   In  addition  to  the  data  collected  in  the  context  of  the  external  study,  statistical  data  on  the  use  of  SIS  by 
Member  State  is  collected  by  eu-LISA  on  the  basis  of  the  provisions  of  the  SIS  regulations  and  related 
implementing acts. Data on the number of searches and alerts in SIS are collected per Member States and not 
singled out per ‘type of search’ or ‘location of the hit’ (border checks, police checks, etc). Most (but not all) 
Member  States  held,  to  some  extent,  national  statistics  with  this  level  of  detail  at  the  moment  when  this 
report was drafted. 

22   Council  Decision  2007/533/JHA  of  12  June  2007  on  the  establishment,  operation  and  use  of  the  second 

generation Schengen Information System (SIS II) OJ L 205, 7.8.2007, p. 63. 

23   While the external study covered all Member States, it looked more in depth at the situation in twelve of 

them: Austria, Bulgaria, Croatia, Estonia, Finland, Germany, Latvia, Lithuania, Romania, Slovenia, Spain 
and Sweden. 

10 

 
 
 
                                                           
Figure 2.  Number of overall SIS II hits reported at external border crossings (2015-2019)24 

70000

60000

50000

40000

30000

20000

10000

0

Art. 26 Alerts
for arrest for
surrender or
extradition

Art. 32 Alerts
for missing
persons

Art. 34 Alerts
for persons
sought to
assist with
judicial
procedure

Art. 36.2
Alerts for
descreet
checks

Art. 36.3
Alerts for
specific
checks

Art. 24
(Regulation)
Alerts for
refusal of
entry or stay

Art. 38(2a)
Alerts for
objects for
seizure
(vehicles)

Art. 38 (2e)
Alerts for
objects for
seizure
issued
documents

2015

2016

2017

2018

2019 (Jan-June)

Source: figure based on border guard surveys (Data for Austria, Croatia, Estonia, Finland, Germany, Latvia, Lithuania, 
Romania, Slovenia, Spain, and Sweden); Data for Spain used only data on Madrid Barajas Airport25. 

According to  the counter-terrorism  officials  consulted for the external study, it appears that 
the  Regulation  had  a  positive  impact  on  the  fight  against  terrorism  and  organised  crime, 
mainly through the general gathering of intelligence facilitated by the greater number of hits, 
which is directly related to the higher number of checks against databases. Besides the value 
of  the  increased  number  of  hits  itself,  the  enhanced  effectiveness  of  border  checks 
strengthened law-enforcement and security services’ trust in the systems, encouraging them 
to enter alerts into the Schengen Information System (SIS) or the Interpol’s Stolen and Lost 
Travel Database (SLTD),.   

As  the  Regulation  was  adopted  to  address  the  threat  of  terrorism,  particularly  by  terrorist 
fighters, the changes in terrorism-related hits and alerts is particularly interesting.  According 
to the data carried out in the context of the study, the number of alerts issued at the request of 
the authorities responsible for national security (terrorism-related) under Article 36(3) SIS II 
Decision  increased  from  2016  to  2018  by  46%.  According  to  the  data  provided  by  seven 

24   Article  24  of  the  Regulation  (EC)  No  1987/2006  of  the  European  Parliament  and  of  the  Council  of 
20 December 2006 on the establishment, operation and use of the second generation Schengen Information 
System (SIS II) concerns only third-country nationals, thus the alerts under this Article are never relevant for 
Union citizens. Moreover, Article 24 may cover alerts not based on security, thus such hits may not all be 
relevant when it comes to assess the prevention of threats to the internal security of the Schengen area. 

25   The study team requested data on hits in both the Supplementary Information Request at the National Entries 
(SIRENE)  and  the  border  guard  survey.  In  the  border  guard  survey  the  data  requested  related  only  to 
Articles 26,  32  and  34  of  Decision  2007/533  and  Article  24  of  Regulation  (EC)  1987/2006  and  Sub-
articles 36(2), 36(3), 38(2a) and 38(2e) of the Decision. Data was also requested for the specific sites visited. 
The data requested from SIRENE went a step further, requesting sub-categories within the specific articles 
and sub-articles. These categories included FTFs and crimes. The assumption  was that  SIRENE aggregate 
and maintain a more detailed database, as they also need to report data to eu-LISA.  

11 

 
 
 
 
                                                           
national  Supplementary  Information  Request  at  the  National  Entries  (SIRENE)  Bureaux26, 
the number of terrorism-related hits under the same article more than doubled over the same 
period.  Apart  from  the  statistics  on  alerts  and  hits,  according  to  counter-terrorism  officials 
interviewed  in  the  external  study,  the  Regulation  had  further  perceived  positive  effects. 
Among  these,  the  officials  mentioned  improvements  in:  (i) monitoring  the  movement  of 
terrorist  fighters  and  in  cooperation  among  Member  States  to  track  these  movements;  (ii) 
overall  intelligence  on  terrorism,  which  facilitates  the  conduct  of  risk  assessments  and  the 
design of responses; (iii) facilitating interventions on terrorist fighters; (iv) the effectiveness 
of discreet surveillance; and (v) detection capability.  

trafficking,  drug 

Apart  from  countering  terrorism,  the  study  conducted  by  the  external  contractor  concluded 
that the Regulation also contributed to the fight against organised crime, particularly migrant 
smuggling,  human 
trafficking,  moving  of  assets  across  borders, 
counterfeiting and property crimes, and forging of documents. Similarly to the countering of 
terrorism,  the  Regulation  particularly  improved  general  intelligence  and  risk  analysis, 
increasing law enforcement’s capability to counter organised crime. The number of hits under 
the  relevant  articles  increased,  particularly  under  Article  36  (‘Alerts  on  discreet  or  specific 
checks’). Furthermore, according to the data collected in the context of the study, the number 
of  hits  on  alerts  for  arrest  and  the  number  of  hits  on  alerts  on  third-country  nationals  for 
refusal  of  entry  and  stay  (Article 24  SIS  II  Regulation27)  increased  by  30%  between  April 
2017 and April 2019 for the 12 Member States further analysed by the external study. 

Additionally,  the  overall  number  of  hits  in  Interpol’s  Stolen  and  Lost  Travel  Database 
(SLTD)  more  than  doubled  from  2016  to  2018,  although  the  increase  varies  substantially 
between Member States.  

III.2. The Regulation’s economic impact 

The  Regulation’s  benefits  must  be  considered  together  with  the  costs  the  different 
stakeholders incur implementing it.  

The  external  study  includes  an  analysis  of  the  economic  costs  stakeholders  incurred  in 
implementing the Regulation in 2018, the year with the most complete data on the economic 
key  factors.  However  data  limitations  significantly  impacted  the  ability  to  reach  clear  cut 
conclusions. In particular: 

  The  analysis  on  additional  waiting  time  for  passengers,  had  to  be    partly  based  on 

estimates due to data limitations 

26   Supplementary Information Request at the National Entries (SIRENE). Each EU country operating SIS has 
set  up  a  national  SIRENE  bureau,  operational  24/7,  that  is  responsible  for  any  supplementary  information 
exchange and coordination of activities connected to SIS alerts. 

27   Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the 
establishment, operation and use of the second generation Schengen Information System (SIS II) OJ L 381, 
28.12.2006, p. 4. 

12 

 
 
 
 
                                                           
  When  assessing  the  costs  calculated  by  the  study,  it  also  emerged  that  travellers 
experience delays for a wide range of reasons, such as regular traffic jams or public 
transport delays. These are not assessed under the same approach, and such travellers 
are very likely unable to  break down the time delay they experience  by  its  different 
causes (e.g. checks, traffic, roadworks, weather). 

  Due to the unavailability of data, costs for private entities, e.g. investment costs, costs 

 

caused by delays and passenger compensation, are not considered.  
Indirect  savings  might  have  been  made  due  to  the  Regulation’s  impact  on  terrorism 
and  organised  criminal  activity,  the  Regulation’s  very  objective.  However  precise 
estimates on such gains areonly available to a very limited extent. Also, the benefits 
deriving  from  a  foiled  terrorist  attack  are  extremely  difficult,  if  not  impossible,  to 
quantify and cannot be measured only in economic terms. 

For  these  reasons,  it  is  not  possible  to  strike  a  clear-cut  balance  that  would  determine  the 
Regulation’s cost efficiency. In any case, passengers bear by far the greatest part of the costs, 
through the increase in waiting times which per passenger, however, seem very limited28.  

Furthermore, carrying out  such checks also  makes passengers feel  safer29 and consequently 
willing to accept longer waiting times if this reduces the risk of terror attacks. This increase 
in perceived safety should also be considered an overall positive effect, including a positive 
multiplier for the economy. Furthermore, checks at borders can be seamless if well organised 
and waiting times can therefore be negligible.  

Although  significantly  higher  increases  in  waiting  times  might  indeed  change  passengers’ 
acceptance, the possibility to relax border checks under Article 9 gives the Schengen Borders 
Code a mechanism to respond to unforeseen excessive waiting times.  

On  this  basis  and  given    the  overall  benefits  of  systematic  checks  for  the  Schengen  area’s 
internal  security,  particularly  the  building  of  comprehensive  intelligence  on  terrorism  and 
organised crime through the increased numbers of alerts and hits in SIS, the costs incurred to 
implement the Regulation appear proportionate and justified. 

IV. External factors affecting systematic checks’ efficiency  

Significant  shortcomings  in  the  Member  States’  technical  ability  to  check  a  person’s 
fingerprints  against  the  data  in  the  travel  documents  undermine  the  systematic  checks’ 

28   According to the study carried out by the external contractor, only four Member States provided estimations 
of the increase of waiting time in minutes. Based on the limited data collected from border guard authorities, 
the external contractor has defined two extreme scenarios – the optimistic scenario in which the waiting time 
per  passenger  increased  one  minute  due  to  the  introduction  of  systematic  checks,  and  the  pessimistic 
scenario  in  which  the  waiting  time  per  passenger  increased  thirteen  minutes  due  to  the  introduction  of 
systematic  checks.  Based  on  the  data  provided  to  the  external  contractor,  the  costs  per  passenger  seem  to 
range between EUR 0.08 and EUR 0.16. 

29   Affirmation  issued  by  the  United  Nations  Office  on  Drugs  and  Crime  (UNODC)  during  the  interviews 

carried out by the external contractor in the framework of the study.  

13 

 
 
 
 
                                                           
efficiency.  This  requires  increased  attention  and  action  from  both  the  Commission  and  the 
Member State authorities. 

In  cases  of  doubt  as  to  the  authenticity  of  the  travel  document  or  its  holder’s  identity, 
Member States  are required to  verify at  least  one of the biometric identifiers in  the storage 
medium  of  passports  and  travel  documents  issued  under  Regulation  (EC)  No 2252/200430, 
i.e. a facial image or fingerprints. ‘Where [such verification is] possible’, this obligation also 
applies to travel documents not issued under this Regulation. The most efficient, reliable and 
affordable  biometric  identifier  to  detect  persons  travelling  under  an  assumed  identity  are 
fingerprints,  for  example,  if  the  imposter  resembles  the  legitimate  holder  of  the  presented 
document  closely.  Thus,  fingerprint  checking  is  even  more  important  as  document  fraud  is 
becoming increasingly sophisticated and difficult to detect, e.g. through ‘morphing’31.  

To counter these increasingly used forgery techniques, the Commission has decided to fund 
the iMARS (image manipulation attack resolving solutions) research project, which aims at 
developing tools to detect manipulated face images, in particular morphed face images in the 
identity  document  life  cycle  and  verify  the  authenticity  of  identity  documents,  as  well  as 
ensuring that European passports including morphed or otherwise manipulated images can no 
longer be issued within the European Union32.    

While waiting for the deliverables of the iMARS project, doubts about a person’s identity can 
only  be  clarified  by  checking  fingerprints  against  the  biometric  identifiers  integrated  in  the 
storage  medium  of  passports  and  travel  documents.  This  is  currently33  done  at  the  external 
borders by only 13 Member States and can only be performed on holders of passports issued 
by 15 Member States already using the necessary technology. This constitutes a security gap 
that should be filled rapidly. This significant underuse of fingerprints directly undermines the 
systematic checks’ objective. Since it is ultimately the travel document and the personal data 
in  it  that  are  checked  against  databases  and  not  the  person  entering  the  Schengen  area, 
without  reliable  verification  of  the  link  between  the  person  and  the  presented  travel 
document, returning terrorist fighters could, despite being systematically checked, still enter 
the Schengen area undetected.  

V. Conclusions 

Terrorism,  including  the  threat  of  returning  terrorist  fighters,  remains  one  of  the  Europe 
Union’s  main  security  concerns.  While  we  cannot  ascertain  exactly  the  direct  impact  the 
Regulation  has  had  on  preventing  terrorist  attacks  or  organised  criminal  activities,  the 

30   Council  Regulation  (EC)  No  2252/2004  of  13  December  2004  on  standards  for  security  features  and 
biometrics in passports and travel documents issued by Member States (OJ L 385, 29.12.2004, p. 1–6)  
31   This technique consists in creating a new face image by digitally merging the facial representations of two 
different  images.  There  are  a  number  of  different  morphing  techniques,  from  automatic  morphing  using 
applications and software, to manual morphing obtained by using widely accessible photo editing software. 
32   iMARS is a research project funded by the European Commission, started in September 2020 for 48 months.  

https://imars-project.eu/. 

33   At the moment when this report was drafted, 

14 

 
 
 
 
                                                           
stakeholders consulted and the statistics available indicate that it has had an overall positive 
impact  on  internal  security  within  the  Schengen  area,  particularly  through  the  overall 
intelligence available to law-enforcement authorities.  

The Regulation had a main impact on persons enjoying the right to free movement under EU 
law, ensuring that security checks will be systematically carried out on all persons. Thus, the 
Regulation  can  be  seen  as  filling  an  important  gap  in  the  use  of  databases  on  persons  with 
freedom of movement, acknowledging that some terrorist fighters may be benefiting from the 
right to travel within the Schengen area. 

While  the  costs  of  implementing  systematic  checks  on  all  persons  entering  and  exiting 
the Schengen area are not negligible, and specially bore by passengers through the increase 
of  waiting  times,  they  appear  proportional  to  the  Regulation’s  impact  on  internal 
security, even without considering the potential costs savings related to preventing terrorist 
attacks  and  organised  crime.  Assessing  the  Regulation’s  overall  impact,  the  border  guard 
authorities consulted in the framework of the study saw it almost unanimously as adequately 
responding to current security needs. 

However,  significant  challenges  could  be 
identified  during  the  first  years  of 
implementation. These challenges concern the distinction between derogations under Article 
8(2a) of the Schengen Borders Code and relaxations under Article 9 of the Schengen Borders 
Code, interpretation of the requirements of both provisions and, consequently, their practical 
application,  the  quality  of  the  risk  assessment  required  for  derogations  and  the  reporting 
required  for  relaxations.  As  both  provisions  remain  applicable  to  land  and  maritime  border 
crossing points, further clarification of procedures for the temporary return to targeted checks 
and  stricter  enforcement  are  needed  to  ensure  a  coherently  high  level  of  security  at  all 
external  borders.  The  use  of  relaxations  needs  to  remain  restricted  to  exceptional  and 
unforeseen circumstances.  

When applying derogation from the principle of systematic checks against relevant databases, 
Member  States  are  strongly  encouraged  to  also  involve  counter-terrorism  and  counter-
organised crime authorities in the preparation of the risk assessment. The template developed 
by  Frontex  to  this  end  aims  at  addressing  the  lack  of  harmonisation  in  data  collection  and 
improving  its  quality,  however  it  will  not  reach  its  aims  if  not  all  relevant  authorities  are 
actively involved. 

A more proactive approach preventing excessive waiting times due to foreseeable events 
would  be  an  important  step  to  remedy  the  situation  at  the  border  crossing  points  without 
hampering  the  Regulation’s  very  objective.  Many  Member  States  notified  their  intention  to 
derogate  from  the  principle  of  systematic  checks  against  relevant  database  in  view  of  the 
summer break and Christmas holidays. Although the use of derogations is a prerogative still 
available to Member States at land and sea borders, Member States should be rather prepared 
to  increase  their  staffing  and  rearrange  the  infrastructure  during  these  well-known  peak 
periods. 

Similarly,  a  uniform  approach  to  assessing  ‘unforeseeable  events’  and  ‘excessive’ 
waiting time would ensure consistency in a critical issue possibly affecting the security of all 

15 

 
 
 
Schengen States. The report on the Functioning of the Schengen Evaluation and Monitoring 
Mechanism34 overall confirmed the challenges identified above, but also acknowledged that 
in  most  cases  national  authorities  had  already  addressed  them  or  were  doing  so  during  the 
evaluation revisits taking place under the Schengen Evaluation Mechanism.  

For the above reasons, when it devised the Strategy on the future of Schengen35 in June 2021, 
leading  to  its  proposal  to  amend  the  Schengen  Borders  Code36  in  December  2021,  the 
Commission  concluded  that  there  was  no  need  for  legislative  amendment  of  the  existing 
Article 8  to  address  the  identified  weaknesses.  The  Commission  rather  intends  to  address 
these  issues  via  ‘soft  law’  means,  in  particular  the  upcoming  review  of  the  Practical 
Handbook  for  Border  Guards37  to  be  used  by  Member  State  competent  authorities  when 
carrying out the border control of persons.  

Moving  forward,  the  Commission  will  continue  monitoring  the  application  of  Article  8  as 
part of the Schengen Evaluation and Monitoring Mechanism.  

34   Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the  Functioning  of  the 
Schengen  Evaluation  and  Monitoring  Mechanism  pursuant  to  Article  22  of  Council  Regulation  (EU)  No 
1053/2013 - COM(2020) 779 final – 25.11.2020. 

35   https://ec.europa.eu/home-affairs/news/towards-stronger-and-more-resilient-schengen-area-2021-05-28_en . 
36   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  Regulation  (EU) 
2016/399  on  a  Union  Code  on  the  rules  governing  the  movement  of  persons  across  borders  – 
COM/2021/891 final. 

37   C(2019) 7131 final, 8.10.2019. 

16