Article 10 Separate lanes and information on signs
1. Member States shall provide separate lanes, in particular at air border crossing points in order to carry out checks on persons, in accordance with Article 8. Such lanes shall be differentiated by means of the signs bearing the indications set out in Annex III. Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States which do not apply Article 22 at their common borders. The signs bearing the indications set out in Annex III shall be used if Member States provide separate lanes at those borders. Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border. 2. Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign shown in Part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign shown in Part B1 (‘visa not required’) and Part B2 (‘all passports’) of Annex III. Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III to this Regulation. All other persons shall use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III. The indications on the signs referred to in the first, second and third subparagraphs may be displayed in such language or languages as each Member State considers appropriate. The provision of separate lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs. 3. At sea and land border crossing points, Member States may separate vehicle traffic into different lanes for light and heavy vehicles and buses by using signs as shown in Part C of Annex III. Member States may vary the indications on those signs where appropriate in the light of local circumstances. 4. In the event of a temporary imbalance in traffic flows at a particular border crossing point, the rules relating to the use of the different lanes may be waived by the competent authorities for the time necessary to eliminate such imbalance.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 10 Separate lanes and information on signs):
1. Member States shall provide separate lanes, in particular at air border crossing points in order to carry out checks on persons, in accordance with Article 8. Such lanes shall be differentiated by means of the signs bearing the indications set out in Annex III. Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States which do not apply Article 22 at their common borders. The signs bearing the indications set out in Annex III shall be used if Member States provide separate lanes at those borders. Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border. 2. Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign shown in Part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign shown in Part B1 (‘visa not required’) and Part B2 (‘all passports’) of Annex III. Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III to this Regulation. All other persons shall use the lanes indicated by the sign shown in Part B2 (‘all passports’) of Annex III. The indications on the signs referred to in the first, second and third subparagraphs may be displayed in such language or languages as each Member State considers appropriate. The provision of separate lanes indicated by the sign shown in Part B1 (‘visa not required’) of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs. 3. At sea and land border crossing points, Member States may separate vehicle traffic into different lanes for light and heavy vehicles and buses by using signs as shown in Part C of Annex III. Member States may vary the indications on those signs where appropriate in the light of local circumstances. 3a. Where Member States decide to use e-gates, self-service systems or automated border control systems, they shall use the signs provided for in part D of Annex III to identify the respective lanes. 3b. Where Member States decide to establish a national facilitation programme in accordance with Article 8d, they may decide to use specific lanes for the third-country nationals benefiting from such a national facilitation programme. They shall use the signs provided for in part E of Annex III to identify the respective lanes. 4. In the event of a temporary imbalance in traffic flows at a particular border crossing point, the rules relating to the use of the different lanes may be waived by the competent authorities for the time necessary to eliminate such imbalance.
Article 11 Stamping of the travel documents
1. The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to: (a) the documents, bearing a valid visa, enabling third-country nationals to cross the border; (b) the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border; (c) the documents enabling third-country nationals not subject to a visa requirement to cross the border. 2. The travel documents of nationals of third countries who are members of the family of a Union citizen to whom Directive 2004/38/EC applies, but who do not present the residence card provided for in that Directive, shall be stamped on entry and exit. The travel documents of nationals of third countries who are members of the family of nationals of third countries enjoying the right of free movement under Union law, but who do not present the residence card provided for in Directive 2004/38/EC, shall be stamped on entry and exit. 3. No entry or exit stamp shall be affixed: (a) to the travel documents of Heads of State and dignitaries whose arrival has been officially announced in advance through diplomatic channels; (b) to pilots’ licences or the certificates of aircraft crew members; (c) to the travel documents of seamen who are present within the territory of a Member State only when their ship puts in and in the area of the port of call; (d) to the travel documents of crew and passengers of cruise ships who are not subject to border checks in accordance with point 3.2.3 of Annex VI; (e) to documents enabling nationals of Andorra, Monaco and San Marino to cross the border; (f) to the travel documents of crews of passengers and goods trains on international connections; (g) to the travel documents of nationals of third countries who present a residence card provided for in Directive 2004/38/EC. Exceptionally, at the request of a third-country national, insertion of an entry or exit stamp may be dispensed with if insertion might cause serious difficulties for that person. In that case, entry or exit shall be recorded on a separate sheet indicating that person’s name and passport number. That sheet shall be given to the third-country national. The competent authorities of the Member States may keep statistics of such exceptional cases and may provide those statistics to the Commission. 4. The practical arrangements for stamping are set out in Annex IV. 5. Whenever possible, third-country nationals shall be informed of the border guard’s obligation to stamp their travel document on entry and exit, even where checks are relaxed in accordance with Article 9.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law.
Article 12 Presumption as regards fulfilment of conditions of duration of stay
1. If the travel document of a third-country national does not bear an entry stamp, the competent national authorities may presume that the holder does not fulfil, or no longer fulfils, the conditions of duration of stay applicable within the Member State concerned. 2. The presumption referred to in paragraph 1 may be rebutted where the third-country national provides, by any means, credible evidence, such as transport tickets or proof of his or her presence outside the territory of the Member States, that he or she has respected the conditions relating to the duration of a short stay. In such a case: (a) where the third-country national is found on the territory of a Member State applying the Schengen acquis in full, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of one of the Member States applying the Schengen acquis in full; (b) where the third-country national is found on the territory of a Member State in respect of which the decision contemplated in Article 3(2) of the 2003 Act of Accession, in Article 4(2) of the 2005 Act of Accession and in Article 4(2) of the 2011 Act of Accession has not been taken, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of such a Member State. In addition to the indications referred to in points (a) and (b), a form as shown in Annex VIII may be given to the third-country national. Member States shall inform each other and the Commission and the Council General Secretariat of their national practices with regard to the indications referred to in this Article. 3. Should the presumption referred to in paragraph 1 not be rebutted, the third-country national may be returned in accordance with Directive 2008/115/EC of the European Parliament and of the Council ( 11 ) and with national law respecting that Directive. 4. The relevant provisions of paragraphs 1 and 2 shall apply mutatis mutandis in the absence of an exit stamp.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 12 Presumption as regards fulfilment of conditions of duration of short stay):
1. Without prejudice to Article 12a, if no individual file has been created in the EES for a third-country national present on the territory of a Member State or the entry/exit record of that third-country national does not contain an exit date following the date of expiry of the authorised length of stay, the competent authorities may presume that third-country national does not fulfil, or no longer fulfils, the conditions of duration of authorised stay within the territory of the Member States. 2. The presumption referred to in paragraph 1 of this Article shall not apply to a third-country national who can provide, by any means, credible evidence that he or she enjoys the right of free movement under Union law or that he or she holds a residence permit or a long-stay visa. Where relevant, Article 35 of Regulation (EU) 2017/2226 shall apply. 3. The presumption referred to in paragraph 1 may be rebutted where the third-country national provides, by any means, credible evidence, such as transport tickets or proof of presence outside the territory of the Member States or of the date of expiry of a previous residence permit or long-stay visa, that he or she has respected the conditions relating to the duration of a short stay. In the case of a rebuttal, the competent authorities shall create an individual file in the EES if necessary or indicate in the EES the date on which, and the place where, the third-country national crossed the external border of one of the Member States or the internal border of a Member State not yet fully applying the Schengen acquis but operating the EES in accordance with Article 20 of Regulation (EU) 2017/2226. 4. Where the presumption referred to in paragraph 1 is not rebutted, a third-country national present on the territory of the Member States may be returned in accordance with Directive 2008/115/EC of the European Parliament and of the Council ( *5 ). A third-country national enjoying the right of free movement under Union law may only be returned in accordance with Directive 2004/38/EC.
Article 13 Border surveillance
1. The main purpose of border surveillance shall be to 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 circumventing the checks at border crossing points. 3. 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, so that unauthorised border crossings are always at risk of being detected. 4. 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 apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning additional measures governing surveillance.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 13 ):
1. The main purpose of border surveillance shall be to prevent or detect unauthorised border crossings, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. It shall also involve the carrying out of risk analyses. Without prejudice to Articles 3 and 4, 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 all necessary resources, including stationary or mobile units, to carry out border surveillance. Border surveillance shall be carried out in such a way as to prevent and discourage persons from unauthorised border crossings between border crossing points or from circumventing the checks at border crossing points, and shall be carried out in full compliance with the obligations laid down in Article 4. 3. 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 make use of situational pictures, to be better able to reduce the loss of lives of migrants at, along or in proximity of the external borders. It shall involve frequent and sudden changes to surveillance periods and other methods or techniques, in order to prevent or detect unauthorised border crossings effectively. 4. 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 is to prevent unauthorised border crossings or to apprehend individuals in connection with an unauthorised crossing of the external border. Surveillance may also be carried out by using technical means, including electronic means, equipment, surveillance systems and, where appropriate, all types of stationary and mobile infrastructure. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 of this Regulation concerning additional measures governing surveillance, including the development of common minimum standards for border surveillance. Those common minimum standards shall take into account the type of borders, i.e. land, sea or air borders, the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 of the European Parliament and of the Council ( 15 ) and other relevant factors, such as geographical particularities.
Article 14 Refusal of entry
1. A third-country national who does not fulfil all the entry conditions laid down in Article 6(1) and does not belong to the categories of persons referred to in Article 6(5) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. 2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately. The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form. 3. Persons refused entry 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. Lodging such an appeal shall not have suspensive effect on a decision to refuse entry. Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry. 4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned. 5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons who were refused entry and the type of border (land, air or sea) at which they were refused entry and submit them yearly to the Commission (Eurostat) in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council ( 12 ). 6. Detailed rules governing refusal of entry are given in Part A of Annex V.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 14 Refusal of entry):
1. A third-country national who does not fulfil all the entry conditions laid down in Article 6(1) and does not belong to the categories of persons referred to in Article 6(5) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. 2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately. The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form. Data on third-country nationals whose entry for a short stay has been refused shall be registered in the EES in accordance with Article 6a(2) of this Regulation and Article 18 of Regulation (EU) 2017/2226. 3. Persons refused entry 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. Lodging such an appeal shall not have suspensive effect on a decision to refuse entry. Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to the correction of the data entered in the EES or of the cancelled entry stamp, or both, and any other cancellations or additions which have been made, by the Member State which refused entry. 4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned. 5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons who were refused entry and the type of border (land, air or sea) at which they were refused entry and submit them yearly to the Commission (Eurostat) in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council ( 16 ). 6. Detailed rules governing refusal of entry are given in Part A of Annex V.
Article 15 Staff and resources for border control
Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 7 to 14, in such a way as to ensure an efficient, high and uniform level of control at their external borders.
Article 16 Implementation of control
1. The border control provided for by Articles 7 to 14 shall be carried out by border guards in accordance with the provisions of this Regulation and with national law. When carrying out that border control, the powers to instigate criminal proceedings conferred on border guards by national law and falling outside the scope of this Regulation shall remain unaffected. Member States shall ensure that the border guards are specialised and properly trained professionals, taking into account common core curricula for border guards established and developed by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (‘the Agency’) established by Regulation (EC) No 2007/2004. Training curricula shall include specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States, with the support of the Agency, shall encourage border guards to learn the languages necessary for the carrying-out of their tasks. 2. Member States shall notify to the Commission the list of national services responsible for border control under their national law in accordance with Article 39. 3. To control borders effectively, each Member State shall ensure close and constant cooperation between its national services responsible for border control.
Article 17 Cooperation between Member States
1. The Member States shall assist each other and shall maintain close and constant cooperation with a view to the effective implementation of border control, in accordance with Articles 7 to 16. They shall exchange all relevant information. 2. Operational cooperation between Member States in the field of management of external borders shall be coordinated by the Agency. 3. Without prejudice to the competences of the Agency, Member States may continue operational cooperation with other Member States and/or third countries at external borders, including the exchange of liaison officers, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on the operational cooperation referred to in the first subparagraph. 4. Member States shall provide for training on the rules for border control and on fundamental rights. In that regard, account shall be taken of the common training standards as established and further developed by the Agency.
Article 18 Joint control
1. Member States which do not apply Article 22 at their common land borders may, up to the date of application of that Article, jointly control those common borders, in which case a person may be stopped only once for the purpose of carrying out entry and exit checks, without prejudice to the individual responsibility of Member States arising from Articles 7 to 14. To that end, Member States may conclude bilateral arrangements between themselves. 2. Member States shall inform the Commission of any arrangements concluded in accordance with paragraph 1.
Article 19 Specific rules for the various types of border and the various means of transport used for crossing the external borders
The specific rules set out in Annex VI shall apply to the checks carried out at the various types of border and on the various means of transport used for crossing border crossing points. Those specific rules may contain derogations from Articles 5 and 6 and Articles 8 to 14.
Article 20 Specific rules for checks on certain categories of persons
1. The specific rules set out in Annex VII shall apply to checks on the following categories of persons: (a) Heads of State and the members of their delegation(s); (b) pilots of aircraft and other crew members; (c) seamen; (d) holders of diplomatic, official or service passports and members of international organisations; (e) cross-border workers; (f) minors; (g) rescue services, police and fire brigades and border guards; (h) offshore workers. Those specific rules may contain derogations from Articles 5 and 6 and Articles 8 to 14. 2. Member States shall notify to the Commission the model cards issued by their Ministries of Foreign Affairs to accredited members of diplomatic missions and consular representations and members of their families in accordance with Article 39.
Amendment rationale: 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 area 1 (“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 2016/399 2 (“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 major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. 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 Forum 3 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 T he 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 . I n 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 2020 4 , 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 ways 5 . Only some have been applying the list of countries 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 pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission 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 Union 8 , 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 conclusions 9 , 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 ‘instrumen t alisation’. 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 migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f 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. 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 chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der 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 regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . 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 p rocedure is needed to ensure a more coordinated approach in case of crisis situation s 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’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill 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 years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , 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 cooperation 17 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 the se measures is fully used, a Me m ber 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. * 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 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 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 law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 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 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 Directive 20 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. T he 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 connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 20 Specific rules for checks on certain categories of persons):
1. Those specific rules may contain derogations from Articles 5 and 6 and Articles 8 to 14. 2. Member States shall notify to the Commission the model cards issued by their Ministries of Foreign Affairs to accredited members of diplomatic missions and consular representations and members of their families in accordance with Article 39.