Article 28 Specific procedure for cases requiring immediate action
1. Where a serious threat to public policy or internal security in a Member State requires immediate action to be taken, the Member State concerned may, on an exceptional basis, immediately reintroduce border control at internal borders, for a limited period of up to ten days. 2. Where a Member State reintroduces border control at internal borders, it shall at the same time notify the other Member States and the Commission accordingly, and shall supply the information referred to in Article 27(1), including the reasons that justify the use of the procedure set out in this Article. The Commission may consult the other Member States immediately upon receipt of the notification. 3. If the serious threat to public policy or internal security persists beyond the period provided for in paragraph 1 of this Article, the Member State may decide to prolong the border control at internal borders for renewable periods of up to 20 days. In doing so, the Member State concerned shall take into account the criteria referred to in Article 26, including an updated assessment of the necessity and the proportionality of the measure, and shall take into account any new elements. In the event of such a prolongation, the provisions of Article 27(4) and (5) shall apply mutatis mutandis , and the consultation shall take place without delay after the decision to prolong has been notified to the Commission and to the Member States. 4. Without prejudice to Article 25(4), the total period during which border control is reintroduced at internal borders, on the basis of the initial period under paragraph 1 of this Article and any prolongations under paragraph 3 of this Article, shall not exceed two months. 5. The Commission shall inform the European Parliament without delay of notifications made under this Article.
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 29 Specific procedure where exceptional circumstances put the overall functioning of the area without internal border control at risk
1. In exceptional circumstances, where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control as referred to in Article 21 of this Regulation or as a result of the non-compliance of a Member State with a Council decision referred to in Article 19(1) of Regulation (EU) 2016/1624 of the European Parliament and of the Council ( 13 ), and insofar as those circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, border control at internal borders may be reintroduced in accordance with paragraph 2 of this Article for a period of up to six months. That period may be prolonged, no more than three times, for a further period of up to six months if the exceptional circumstances persist. 2. The Council may, as a last resort and as a measure to protect the common interests within the area without internal border control, where all other measures, in particular those referred to in Article 21(1), are ineffective in mitigating the serious threat identified, recommend that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders. The Council’s recommendation shall be based on a proposal from the Commission. The Member States may request the Commission to submit such a proposal to the Council for a recommendation. In its recommendation, the Council shall at least indicate the information referred to in Article 27(1)(a) to (e). The Council may recommend a prolongation in accordance with the conditions and procedure set out in this Article. Before a Member State reintroduces border control at all or at specific parts of its internal borders under this paragraph, it shall notify the other Member States, the European Parliament and the Commission accordingly. 3. In the event that the recommendation referred to in paragraph 2 is not implemented by a Member State, that Member State shall without delay inform the Commission in writing of its reasons. In such a case, the Commission shall present a report to the European Parliament and to the Council assessing the reasons provided by the Member State concerned and the consequences for protecting the common interests of the area without internal border control. 4. On duly justified grounds of urgency relating to situations where the circumstances giving rise to the need to prolong border control at internal borders in accordance with paragraph 2 become known less than 10 days before the end of the preceding reintroduction period, the Commission may adopt any necessary recommendations by means of immediately applicable implementing acts in accordance with the procedure referred to in Article 38(3). Within 14 days of the adoption of such recommendations, the Commission shall submit to the Council a proposal for a recommendation in accordance with paragraph 2 of this Article. 5. This Article shall be without prejudice to measures that may be adopted by the Member States in the event of a serious threat to public policy or internal security under Articles 25, 27 and 28.
Article 30 Criteria for the temporary reintroduction of border control at internal borders where exceptional circumstances put the overall functioning of the area without internal border control at risk
1. Where, as a last resort, the Council recommends in accordance with Article 29(2) the temporary reintroduction of border control at one or more internal borders or at parts thereof, it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security within the area without internal border control, and shall assess the proportionality of the measure in relation to that threat. That assessment shall be based on the detailed information submitted by the Member State(s) concerned and by the Commission and any other relevant information, including any information obtained pursuant to paragraph 2 of this Article. In making such an assessment, the following considerations shall in particular be taken into account: (a) the availability of technical or financial support measures which could be or have been resorted to at national or Union level, or both, including assistance by Union bodies, offices or agencies, such as the Agency, the European Asylum Support Office, established by Regulation (EU) No 439/2010 of the European Parliament and of the Council ( 14 ) or the European Police Office (‘Europol’), established by Decision 2009/371/JHA, and the extent to which such measures are likely to adequately remedy the threat to public policy or internal security within the area without internal border control; (b) the current and likely future impact of any serious deficiencies relating to external border control identified in the context of the evaluations carried out pursuant to Regulation (EU) No 1053/2013 and the extent to which such serious deficiencies constitute a serious threat to public policy or internal security within the area without internal border control; (c) the likely impact of the reintroduction of border control on the free movement of persons within the area without internal border control. 2. Before adopting a proposal for a Council recommendation, in accordance with Article 29(2), the Commission may: (a) request Member States, the Agency, Europol or other Union bodies, offices or agencies to provide it with further information; (b) carry out on-site visits, with the support of experts from Member States and of the Agency, Europol or any other relevant Union body, office or agency, in order to obtain or verify information relevant for that recommendation.
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 31 Informing the European Parliament and the Council
The Commission and the Member State(s) concerned shall inform the European Parliament and the Council as soon as possible of any reasons which might trigger the application of Article 21 and Articles 25 to 30.
Article 32 Provisions to be applied where border control is reintroduced at internal borders
Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis .
Article 33 Report on the reintroduction of border control at internal borders
Within four weeks of the lifting of border control at internal borders, the Member State which has carried out border control at internal borders shall present a report to the European Parliament, the Council and the Commission on the reintroduction of border control at internal borders, outlining, in particular, the initial assessment and the respect of the criteria referred to in Articles 26, 28 and 30, the operation of the checks, the practical cooperation with neighbouring Member States, the resulting impact on the free movement of persons, the effectiveness of the reintroduction of border control at internal borders, including an ex-post assessment of the proportionality of the reintroduction of border control. The Commission may issue an opinion on that ex-post assessment of the temporary reintroduction of border control at one or more internal borders or at parts thereof. The Commission shall present to the European Parliament and to the Council, at least annually, a report on the functioning of the area without internal border control. The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year.
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 33 ):
1. Within 4 weeks of the lifting of border control at internal borders, Member States which have carried out border control at internal borders shall present a report to the European Parliament, the Council and the Commission on the reintroduction and, where applicable, the prolongation of border control at internal borders. 2. Without prejudice to the paragraph 1, where border control are prolonged as referred to in Article 25a(5), the Member State concerned shall submit a report at the expiry of 12 months and 12 months thereafter if border control is exceptionally maintained. 3. The report shall outline, in particular, the initial and follow-up assessment of the necessity and proportionality of border control, the fulfilment of the criteria referred to in Articles 26, the operation of the checks, the practical cooperation with neighbouring Member States, the resulting impact on the free movement of persons in particular in the cross-border regions, the effectiveness of the reintroduction of border control at internal borders, including an ex post assessment of the necessity and proportionality of the reintroduction of border control. 4. The Commission shall adopt an implementing act to establish a uniform format for such report and shall make it available online. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2). 5. The Commission may issue an opinion on that ex post assessment of the temporary reintroduction of border control at one or more internal borders or at parts thereof. 6. At least once per year, the Commission shall report to the European Parliament and to the Council jointly on the functioning of the area without internal border control (the ‘State of Schengen report’). The Commission may also discuss the State of Schengen report separately with the European Parliament and the Council. The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year, as well as the actions taken by the Commission with regard to the reintroduction of border control at internal borders. The report shall pay particular attention to border control that has been in place for longer than 12 months. It shall also include an assessment of the necessity and proportionality of the reintroduction and prolongations of border control in the period covered by that report as well as information on the trends within the area without internal border control as regards the unauthorised movements of third-country nationals, taking into account available information from the relevant Union agencies and data analysis from relevant information systems.
Article 34 Informing the public
The Commission and the Member State concerned shall inform the public in a coordinated manner on a decision to reintroduce border control at internal borders and indicate in particular the start and end date of such a measure, unless there are overriding security reasons for not doing so.
Article 35 Confidentiality
At the request of the Member State concerned, the other Member States, the European Parliament and the Commission shall respect the confidentiality of information supplied in connection with the reintroduction and prolongation of border control and the report drawn up under Article 33.
Article 36 Amendments to the Annexes
The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning amendments to Annexes III, IV and VIII.
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 36 ):
1. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning amendments to Annexes III, IV and VIII. 2. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 to supplement this Regulation by adding in Annex XI, part B, categories of persons undertaking essential travel. 3. Where, in duly justified cases, regarding the nature of the large-scale public health emergency, imperative grounds of urgency so require, the procedure provided for in Article 37a shall apply to delegated acts adopted pursuant to paragraph 2 of this Article.
Article 37 Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 13(5) and Article 36 shall be conferred on the Commission for an indeterminate period of time. 3. The delegation of powers referred to in Article 13(5) and Article 36 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 13(5) and Article 36 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 38 Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. 3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.
Article 39 Notifications
1. Member States shall notify the Commission of: (a) the list of residence permits, distinguishing between those covered by Article 2(16)(a) and those covered by Article 2(16)(b) and accompanied by a specimen for permits covered by Article 2(16)(b). Residence cards issued in accordance with Directive 2004/38/EC shall be specifically highlighted as such and specimens shall be provided for those residence cards which have not been issued in accordance with the uniform format laid down by Regulation (EC) No 1030/2002; (b) the list of their border crossing points; (c) the reference amounts required for the crossing of their external borders fixed annually by the national authorities; (d) the list of national services responsible for border control; (e) the specimen of model cards issued by Foreign Ministries; (f) the exceptions to the rules regarding the crossing of the external borders referred to in Article 5(2)(a); (g) the statistics referred to in Article 11(3). 2. The Commission shall make the information notified in conformity with paragraph 1 available to the Member States and the public through publication in the Official Journal of the European Union , C Series, and by any other appropriate means.
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 39 Notifications):
2. The Commission shall make the information notified in conformity with paragraph 1 available to the Member States and the public through publication in the Official Journal of the European Union , C Series, and by any other appropriate means.
Article 40 Local border traffic
This Regulation shall be without prejudice to Union rules on local border traffic and to existing bilateral agreements on local border traffic.
Article 41 Ceuta and Melilla
The provisions of this Regulation shall not affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Declaration by the Kingdom of Spain on the cities of Ceuta and Melilla in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 ( 15 ).
Article 42 Notification of information by the Member States
The Member States shall notify the Commission of national provisions relating to Article 23(c) and (d), the penalties as referred to in Article 5(3) and the bilateral agreements authorised by this Regulation. Subsequent changes to those provisions shall be notified within five working days. The information notified by the Member States shall be published in the Official Journal of the European Union , C Series.
Article 43 Evaluation mechanism
1. In accordance with the Treaties and without prejudice to their provisions on infringement procedures, the implementation by each Member State of this Regulation shall be evaluated through an evaluation mechanism. 2. The rules on the evaluation mechanism are specified in Regulation (EU) No 1053/2013. In accordance with that evaluation mechanism, the Member States and the Commission are, jointly, to conduct regular, objective and impartial evaluations in order to verify the correct application of this Regulation and the Commission is to coordinate the evaluations in close cooperation with the Member States. Under that mechanism, every Member State is evaluated at least every five years by a small team consisting of Commission representatives and of experts designated by the Member States. Evaluations may consist of announced or unannounced on-site visits at external or internal borders. In accordance with that evaluation mechanism, the Commission is responsible for adopting the multiannual and annual evaluation programmes and the evaluation reports. 3. In the case of possible deficiencies recommendations for remedial action may be addressed to the Member States concerned. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report adopted by the Commission in accordance with Article 14 of Regulation (EU) No 1053/2013, Articles 21 and 29 of this Regulation shall apply. 4. The European Parliament and the Council shall be informed at all stages of the evaluation and be transmitted all the relevant documents, in accordance with the rules on classified documents. 5. The European Parliament shall be immediately and fully informed of any proposal to amend or to replace the rules laid down in Regulation (EU) No 1053/2013.
Article 44 Repeal
Regulation (EC) No 562/2006 is repealed. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex X.
Article 45 Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union . This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
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 45 Entry into force):
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .