Article 21 Measures at external borders and support by the Agency
1. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report drawn up pursuant to Article 14 of Regulation (EU) No 1053/2013, and with a view to ensuring compliance with the recommendations referred to in Article 15 of that Regulation, the Commission may recommend, by means of an implementing act, that the evaluated Member State take certain specific measures, which may include one or both of the following: (a) initiating the deployment of European border guard teams in accordance with Regulation (EC) No 2007/2004; (b) submitting its strategic plans, based on a risk assessment, including information on the deployment of personnel and equipment, to the Agency for its opinion thereon. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2). 2. The Commission shall inform the committee established pursuant to Article 38(1) on a regular basis of the progress in the implementation of the measures referred to in paragraph 1 of this Article and on its impact on the deficiencies identified. It shall also inform the European Parliament and the Council. 3. Where an evaluation report as referred to in paragraph 1 has concluded that the evaluated Member State is seriously neglecting its obligations and must therefore report on the implementation of the relevant action plan within three months in accordance with Article 16(4) of Regulation (EU) No 1053/2013, and where, following that three-month period, the Commission finds that the situation persists, it may trigger the application of the procedure provided for in Article 29 of this Regulation where all the conditions for doing so are fulfilled.
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 21 Measures at external borders and support by the Agency):
That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2). 2. The Commission shall inform the committee established pursuant to Article 38(1) on a regular basis of the progress in the implementation of the measures referred to in paragraph 1 of this Article and on its impact on the deficiencies identified. It shall also inform the European Parliament and the Council. 3. Where an evaluation report as referred to in paragraph 1 has concluded that the evaluated Member State is seriously neglecting its obligations and must therefore report on the implementation of the relevant action plan within three months in accordance with Article 16(4) of Regulation (EU) No 1053/2013, and where, following that three-month period, the Commission finds that the situation persists, it may trigger the application of the procedure provided for in Article 29 of this Regulation where all the conditions for doing so are fulfilled.
Article 22 Crossing internal borders
Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.
Article 23 Checks within the territory
The absence of border control at internal borders shall not affect: (a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures: (i) do not have border control as an objective; (ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime; (iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders; (iv) are carried out on the basis of spot-checks; (b) security checks on persons carried out at ports and airports by the competent authorities under the law of each Member State, by port or airport officials or carriers, provided that such checks are also carried out on persons travelling within a Member State; (c) the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents; (d) the possibility for a Member State to provide by law for an obligation on third-country nationals to report their presence on its territory pursuant to the provisions of Article 22 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (‘the Schengen Convention’).
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 23 ):
The absence of border control at internal borders shall not affect: (b) the possibility for the competent authorities of a Member State or for carriers to carry out security checks on persons at transport hubs in accordance with national law, provided that such checks are also carried out on persons travelling within a Member State; (c) the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents; (d) the possibility for a Member State to provide by law for an obligation for third-country nationals to report their presence on its territory and an obligation for managers of establishments providing accommodation to ensure that third-country nationals complete and sign registration forms, with the exception of accompanying spouses or accompanying minors or members of travel groups, pursuant to the provisions of Articles 22 and 45, respectively, of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (‘the Schengen Convention’).
Article 24 Removal of obstacles to traffic at road crossing-points at internal borders
Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not exclusively based on road-safety considerations. At the same time, Member States shall be prepared to provide for facilities for checks in the event that internal border controls are reintroduced.
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 24 Removal of obstacles to traffic at road crossing-points at internal borders):
Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not based exclusively on road-safety considerations or required for the use of the technologies referred to in Article 23, point (a). At the same time, Member States shall be prepared to provide for facilities for checks in the event that internal border controls are reintroduced.
Article 25 General framework for the temporary reintroduction of border control at internal borders
1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its duration exceeds 30 days. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat. 2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 27, 28 and 29. The criteria referred to, respectively, in Articles 26 and 30 shall be taken into account in each case where a decision on the reintroduction of border control at internal borders is considered pursuant, respectively, to Article 27, 28 or 29. 3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 26 and in accordance with Article 27, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods of up to 30 days. 4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months. Where there are exceptional circumstances as referred to in Article 29, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that 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. 
Revised version (Article 25 ):
1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders. A serious threat to public policy or internal security may, in particular, be considered to arise from: (a) terrorist incidents or threats, and threats posed by serious organised crime; (b) large-scale public health emergencies; (c) an exceptional situation characterised by sudden large-scale unauthorised movements of third-country nationals between the Member States, putting a substantial strain on the overall resources and capacities of well-prepared competent authorities and which is likely to put at risk the overall functioning of the area without internal border control, as evidenced by information analysis and all available data, including from relevant Union agencies; (d) large scale or high profile international events; 2. In all cases, border control at internal borders shall be reintroduced only as a measure of last resort. The scope and duration of the temporary reintroduction of border control shall not exceed what is strictly necessary to respond to the serious threat identified. Border control may only be reintroduced or prolonged pursuant to Articles 25a and 28 where a Member State has established that such a measure is necessary and proportionate, taking into account the criteria referred to in Article 26(1), and, where such control is prolonged, also taking into account the risk assessment referred to in Article 26(2). Border control may also be reintroduced in accordance with Article 29, taking into account the criteria referred to in Article 30. 3. Where the same serious threat persists, border control at internal borders may be prolonged in accordance with Articles 25a or 29, or, where the threat relates to large-scale public health emergencies, Article 28. The same serious threat shall be considered to persist where the justification put forward by the Member State for prolonging border control is based on the same grounds as those that justified the initial reintroduction of the border control.
Article 26 Criteria for the temporary reintroduction of border control at internal borders
Where a Member State decides, as a last resort, on the temporary reintroduction of border control at one or more of its internal borders or at parts thereof, or decides to prolong such reintroduction, in accordance with Article 25 or Article 28(1), it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security, and shall assess the proportionality of the measure in relation to that threat. In making such an assessment, the Member State shall, in particular, take the following into account: (a) the likely impact of any threats to its public policy or internal security, including following terrorist incidents or threats and including those posed by organised crime; (b) the likely impact of such a measure on free movement of persons within the area without internal border control.
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 26 ):
2. Where border control at internal borders has been in place for 6 months in accordance with Article 25a(5), the Member State concerned shall carry out a risk assessment, which, in addition to the elements contained in Article 27, paragraphs 2 and 3, shall also include a reassessment of the criteria laid down in paragraph 1 of this Article. 3. Where border control at internal borders has been reintroduced or prolonged, the Member States concerned shall ensure that it is accompanied by appropriate measures that mitigate the impact resulting from the reintroduction of border control on persons and the transport of goods, giving particular consideration to the strong social and economic ties between cross-border regions, and to persons undertaking essential travel.
Article 27 Procedure for the temporary reintroduction of border control at internal borders under Article 25
1. Where a Member State plans to reintroduce border control at internal borders under Article 25, it shall notify the other Member States and the Commission at the latest four weeks before the planned reintroduction, or within a shorter period where the circumstances giving rise to the need to reintroduce border control at internal borders become known less than four weeks before the planned reintroduction. To that end, the Member State shall supply the following information: (a) the reasons for the proposed reintroduction, including all relevant data detailing the events that constitute a serious threat to its public policy or internal security; (b) the scope of the proposed reintroduction, specifying at which part or parts of the internal borders border control is to be reintroduced; (c) the names of the authorised crossing-points; (d) the date and duration of the planned reintroduction; (e) where appropriate, the measures to be taken by the other Member States. A notification under the first subparagraph may also be submitted jointly by two or more Member States. If necessary, the Commission may request additional information from the Member State(s) concerned. 2. The information referred to in paragraph 1 shall be submitted to the European Parliament and to the Council at the same time as it is notified to the other Member States and to the Commission pursuant to that paragraph. 3. Member States making a notification under paragraph 1 may, where necessary and in accordance with national law, decide to classify parts of the information. Such classification shall not preclude information from being made available by the Commission to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament under this Article shall comply with rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission. 4. Following notification by a Member State under paragraph 1 and with a view to consultation provided for in paragraph 5, the Commission or any other Member State may, without prejudice to Article 72 TFEU, issue an opinion. If, based on the information contained in the notification or on any additional information it has received, the Commission has concerns as regards the necessity or proportionality of the planned reintroduction of border control at internal borders, or if it considers that a consultation on some aspect of the notification would be appropriate, it shall issue an opinion to that effect. 5. The information referred to in paragraph 1 and any Commission or Member State opinion under paragraph 4 shall be the subject of consultation, including, where appropriate, joint meetings between the Member State planning to reintroduce border control at internal borders, the other Member States, especially those directly affected by such measures, and the Commission, with a view to organising, where appropriate, mutual cooperation between the Member States and to examining the proportionality of the measures to the events giving rise to the reintroduction of border control and the threat to public policy or internal security. 6. The consultation referred to in paragraph 5 shall take place at least ten days before the date planned for the reintroduction of border control.
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.