Article 1 Subject matter and principles
This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the Union. It lays down rules governing border control of persons crossing the external borders of the Member States of the Union.
Article 2 Definitions
For the purposes of this Regulation the following definitions apply: 1. ‘internal borders’ means: (a) the common land borders, including river and lake borders, of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular internal ferry connections; 2. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; 3. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country; 4. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States, and consisting of the transport of passengers and vehicles according to a published timetable; 5. ‘persons enjoying the right of free movement under Union law’ means: (a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council ( 1 ) applies; (b) third-country nationals and their family members, whatever their nationality, 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; 6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article; 7. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council ( 2 ); 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 9. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement; 10. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; 11. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it; 12. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks; 13. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line); 14. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks; 15. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 16. ‘residence permit’ means: (a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 ( 3 ) and residence cards issued in accordance with Directive 2004/38/EC; (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory that have been the subject of a notification and subsequent publication in accordance with Article 39, with the exception of: (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum; and (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 ( 4 ); 17. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage; 18. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 19. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country; 20. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States, as defined under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States; 21. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States.
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 2 Definitions):
For the purposes of this Regulation the following definitions apply: 2. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; 3. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country; 4. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States, and consisting of the transport of passengers and vehicles according to a published timetable; 6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article; 7. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council ( 2 ); 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 9. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement; 10. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; 11. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it; 12. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside fixed opening hours, including preventative measures, to prevent or detect unauthorised border crossings or the circumvention of border checks, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally; 13. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line); 14. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks; 15. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 17. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage; 18. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 19. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country; 20. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States, as defined under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States; 21. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States; 22. ‘entry/exit System’ (EES) means the system established by Regulation (EU) 2017/2226 of the European Parliament and of the Council ( 5 ); 23. ‘self-service system’ means an automated system which performs all or some of the border checks that are applicable to a person and which may be used for pre-enrolling data in the EES; 24. ‘e-gate’ means an infrastructure operated by electronic means where an external border or an internal border where controls have not yet been lifted is actually crossed; 25. ‘automated border control system’ means a system which allows for an automated border crossing, and which is composed of a self-service system and an e-gate; 26. ‘confirmation of the authenticity and integrity of the chip data’ means the process by which it is verified, through the use of certificates, that the data on the electronic storage medium (chip) originate from the issuing authority and that they have not been changed; 27. ‘large-scale public health emergency’ means a public health emergency, that is recognised at Union level by the Commission, taking into account information from competent national authorities, where a serious cross-border threat to health could have large-scale repercussions on the exercise of the right to free movement; 28. ‘essential travel’ means travel by a person who is exempted from restrictions on entry pursuant to Article 21a(4) or (5), in connection with an essential function or need, taking into account any applicable international obligations of the Union and of the Member States; 29. ‘non-essential travel’ means travel other than essential travel; 30. ‘transport hubs’ means airports, sea or river ports, train or bus stations and freight terminals.
Article 3 Scope
This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: (a) the rights of persons enjoying the right of free movement under Union law; (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .
Article 4 Fundamental Rights
When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement , and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.
Article 5 Crossing of external borders
1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39. 2. By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed: (a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 39; (b) for individuals or groups of persons in the event of an unforeseen emergency situation; (c) in accordance with the specific rules set out in Articles 19 and 20 in conjunction with Annexes VI and VII. 3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. Those penalties shall be effective, proportionate and dissuasive.
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 5 Crossing of external borders):
1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39. 3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. Those penalties shall be effective, proportionate and dissuasive. Member States may, where a large number of migrants attempt to cross their external borders in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order. Any measures pursuant to the first subparagraph of this paragraph and paragraph 3, second subparagraph of this Article, shall be implemented in a manner that is proportionate and that takes full account of the rights of: (a) persons enjoying the right of free movement under Union law; (b) third-country nationals who are long-term residents under Council Directive 2003/109/EC ( 7 ), persons deriving their right to reside from other instruments of Union or national law or who hold national long-stay visas, as well as their respective family members; and (c) third-country nationals seeking international protection.
Article 6 Entry conditions for third-country nationals
1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years; (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 ( 5 ), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. 2. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States. 3. A non-exhaustive list of supporting documents which the border guard may request from the third-country national in order to verify the fulfilment of the conditions set out in paragraph 1 (c) is included in Annex I. 4. Means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed. Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 39. The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence. 5. By way of derogation from paragraph 1: (a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit; (b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/2009 of the European Parliament and of the Council ( 6 ). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002 ( 7 ), shall be used; (c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly.
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 6 Entry conditions for third-country nationals):
1a. The period of 90 days in any 180-day period referred to in paragraph 1 of this Article shall be calculated as a single period for the Member States operating the EES on the basis of Regulation (EU) 2017/2226. That period shall be calculated separately for each of the Member States which do not operate the EES. 2. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States. 3. A non-exhaustive list of supporting documents which the border guard may request from the third-country national in order to verify the fulfilment of the conditions set out in paragraph 1 (c) is included in Annex I. 4. Means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed. Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 39. The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence.
Article 7 Conduct of border checks
1. Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 8 Border checks on persons
1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out. 2. On entry and on exit, persons enjoying the right of free movement under Union law shall be subject to the following checks: (a) verification of the identity and the nationality of the person and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (1) the SIS; (2) Interpol’s Stolen and Lost Travel Documents (SLTD) database; (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. For passports and travel documents containing a storage medium as referred to in Article 1(2) of Council Regulation (EC) No 2252/2004 ( 8 ), the authenticity of the chip data shall be checked. (b) verification that a person enjoying the right of free movement under Union law is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases. Where there are doubts as to the authenticity of the travel document or the identity of its holder, at least one of the biometric identifiers integrated into the passports and travel documents issued in accordance with Regulation (EC) No 2252/2004 shall be verified. Where possible, such verification shall also be carried out in relation to travel documents not covered by that Regulation. 2a. Where the checks against the databases referred to in points (a) and (b) of paragraph 2 would have a disproportionate impact on the flow of traffic, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points, following an assessment of the risks related to the public policy, internal security, public health or international relations of any of the Member States. The scope and duration of the temporary reduction to targeted checks against the databases shall not exceed what is strictly necessary and shall be defined in accordance with a risk assessment carried out by the Member State concerned. The risk assessment shall state the reasons for the temporary reduction to targeted checks against the databases, take into account, inter alia, the disproportionate impact on the flow of traffic and provide statistics on passengers and incidents related to cross-border crime. It shall be updated regularly. Persons who, in principle, are not subject to targeted checks against the databases, shall, as a minimum, be subject to a check with a view to establishing their identity on the basis of the production or presentation of travel documents. Such a check shall consist of a rapid and straightforward verification of the validity of the travel document for crossing the border, and of the presence of signs of falsification or counterfeiting, where appropriate by using technical devices, and, in cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard shall consult the databases referred to in points (a) and (b) of paragraph 2. The Member State concerned shall transmit its risk assessment and updates thereto to the European Border and Coast Guard Agency (‘the Agency’), established by Regulation (EU) 2016/1624 of the European Parliament and of the Council ( 9 ), without delay and shall report every six months to the Commission and to the Agency on the application of the checks against the databases carried out on a targeted basis. The Member State concerned may decide to classify the risk assessment or parts thereof. 2b. Where a Member State intends to carry out targeted checks against the databases pursuant to paragraph 2a, it shall notify the other Member States, the Agency and the Commission accordingly without delay. The Member State concerned may decide to classify the notification or parts thereof. Where the Member States, the Agency or the Commission have concerns about the intention to carry out targeted checks against the databases, they shall notify the Member State in question of those concerns without delay. The Member State in question shall take those concerns into account. 2c. The Commission shall, by 8 April 2019, transmit to the European Parliament and the Council an evaluation of the implementation and consequences of paragraph 2. 2d. With regard to air borders, paragraphs 2a and 2b shall apply for a maximum transitional period of six months from 7 April 2017. In exceptional cases, where, at a particular airport, there are specific infrastructural difficulties requiring a longer period of time for adaptations in order to allow for the carrying-out of systematic checks against the databases without having a disproportionate impact on the flow of traffic, the six-month transitional period referred to in the first subparagraph may be prolonged for that particular airport by a maximum of 18 months in accordance with the procedure specified in the third subparagraph. For that purpose, the Member State shall, at the latest three months before the expiry of the transitional period referred to in the first subparagraph, notify the Commission, the Agency and the other Member States of the specific infrastructural difficulties in the airport concerned, the envisaged measures to remedy them and the required period of time for their implementation. Where specific infrastructural difficulties requiring a longer period for adaptations exist, the Commission, within one month of receipt of the notification referred to in the third subparagraph and after consulting the Agency, shall authorise the Member State concerned to prolong the transitional period for the airport concerned and, where relevant, shall set the length of such prolongation. 2e. The checks against the databases referred to in points (a) and (b) of paragraph 2 may be carried out in advance on the basis of passenger data received in accordance with Council Directive 2004/82/EC ( 10 ) or in accordance with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and the validity of the travel document for crossing the border, shall also be verified. 2f. By way of derogation from paragraph 2, persons enjoying the right of free movement under Union law who cross the internal land borders of the Member States for which the verification in accordance with the applicable Schengen evaluation procedures has already been successfully completed, but for which the decision on the lifting of controls on their internal borders pursuant to the relevant provisions of the relevant Acts of Accession has not yet been taken, may be subject to the checks on exit referred to in paragraph 2 only on a non-systematic basis, based on a risk assessment. 3. On entry and exit, third-country nationals shall be subject to thorough checks as follows: (a) thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 6(1) and, where applicable, of documents authorising residence and the pursuit of a professional activity. This shall include a detailed examination covering the following aspects: (i) verification of the identity and the nationality of the third-country national and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (2) Interpol’s SLTD database; For passports and travel documents containing a storage medium, the authenticity of the chip data shall be checked, subject to the availability of valid certificates; (ii) verification that the travel document is accompanied, where applicable, by the requisite visa or residence permit; (iii) examination of the entry and exit stamps on the travel document of the third-country national concerned, in order to verify, by comparing the dates of entry and exit, that the person has not already exceeded the maximum duration of authorised stay in the territory of the Member States; (iv) verification regarding the point of departure and the destination of the third-country national concerned and the purpose of the intended stay, checking, if necessary, the corresponding supporting documents; (v) verification that the third-country national concerned has sufficient means of subsistence for the duration and purpose of the intended stay, for his or her return to the country of origin or transit to a third country into which he or she is certain to be admitted, or that he or she is in a position to acquire such means lawfully; (vi) verification that the third-country national concerned, his or her means of transport and the objects he or she is transporting are not likely to jeopardise the public policy, internal security, public health or international relations of any of the Member States. Such verification shall include direct consultation of the data and alerts on persons and, where necessary, objects included in the SIS and other relevant Union databases, and the action to be performed, if any, as a result of an alert. This is without prejudice to the consultation of national and Interpol databases; (b) if the third country national holds a visa referred to in Article 6(1)(b), the thorough checks on entry shall also comprise verification of the identity of the holder of the visa and of the authenticity of the visa, by consulting the Visa Information System (VIS) in accordance with Article 18 of Regulation (EC) No 767/2008; (c) by way of derogation, the VIS may be consulted using the number of the visa sticker in all cases and, on a random basis, the number of the visa sticker in combination with the verification of fingerprints where: (i) traffic of such intensity arises that the waiting time at the border crossing point becomes excessive; (ii) all resources have already been exhausted as regards staff, facilities and organisation; and (iii) on the basis of an assessment there is no risk related to internal security and illegal immigration. However, in all cases where there is doubt as to the identity of the holder of the visa and/or the authenticity of the visa, the VIS shall be consulted systematically using the number of the visa sticker in combination with the verification of fingerprints. This derogation may be applied only at the border crossing point concerned for as long as the conditions referred to in points (i), (ii) and (iii) are met; (d) the decision to consult the VIS in accordance with point (c) shall be taken by the border guard in command at the border crossing point or at a higher level. The Member State concerned shall immediately notify the other Member States and the Commission of any such decision; (e) each Member State shall transmit once a year a report on the application of point (c) to the European Parliament and the Commission, which shall include the number of third-country nationals who were checked in the VIS using the number of the visa sticker only and the length of the waiting time referred to in point (c)(i); (f) points (c) and (d) shall apply for a maximum period of three years, beginning three years after the VIS has started operations. The Commission shall, before the end of the second year of application of points (c) and (d), transmit to the European Parliament and to the Council an evaluation of their implementation. On the basis of that evaluation, the European Parliament or the Council may invite the Commission to propose appropriate amendments to this Regulation; (g) thorough checks on exit shall comprise: (1) the SIS; (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. (ii) verification that the third-country national concerned is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases; (h) in addition to the checks referred to in point (g) thorough checks on exit may also comprise: (i) verification that the person is in possession of a valid visa, if required pursuant to Regulation (EC) No 539/2001, except where he or she holds a valid residence permit; such verification may comprise consultation of the VIS in accordance with Article 18 of Regulation (EC) No 767/2008; (ii) verification that the person did not exceed the maximum duration of authorised stay in the territory of the Member States; (i) for the purpose of identification of any person who may not fulfil, or who may no longer fulfil, the conditions for entry, stay or residence on the territory of the Member States, the VIS may be consulted in accordance with Article 20 of Regulation (EC) No 767/2008; (ia) the checks against the databases referred to in point (a)(i) and (vi) and point (g) may be carried out in advance on the basis of passenger data received in accordance with Directive 2004/82/EC or with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and validity of the travel document for crossing the border, shall also be verified; (ib) where there are doubts as to the authenticity of the travel document or the identity of the third-country national, the checks, where possible, shall include the verification of at least one of the biometric identifiers integrated into the travel documents. 4. Where facilities exist and if requested by the third-country national, such thorough checks shall be carried out in a private area. 5. Without prejudice to the second subparagraph, third-country nationals subject to a thorough second line check shall be given written information in a language which they understand or may reasonably be presumed to understand, or in another effective way, on the purpose of, and the procedure for, such a check. This information shall be available in all the official languages of the Union and in the language(s) of the country or countries bordering the Member State concerned and shall indicate that the third-country national may request the name or service identification number of the border guards carrying out the thorough second line check, the name of the border crossing point and the date on which the border was crossed. 6. Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive 2004/38/EC. 7. Detailed rules governing the information to be registered are laid down in Annex II. 8. Where Article 5(2)(a) or (b) applies, Member States may also provide derogations from the rules set out in this Article.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal The area without controls at internal borders (the “Schengen Area”) is one of the biggest achievements of European integration . In the Communication ‘ A Strategy towards a fully functioning and resilient Schengen area 1 (“Schengen Strategy”), the Commission stressed that the foundations of Schengen are part of Europe’s DNA. The Schengen area comprises an area where European Union citizens and non-EU citizens legally staying in the territory, as well as goods and services, can travel without being subject to internal border controls . Schengen is an essential element of the area of freedom, security and justice and a key element for the functioning of the Single Market. Its creation has brought significant social and economic benefits to European society. However, in recent years, it has been repeatedly put to the test by a series of crises and challenges. The unprecedented 2015 refugee crisis exposed shortcomings in the Union’s management of the external borders and showed that the migration system was not well-designed to meet those challenges, with the consequence that a number of Member States reintroduced internal border controls. Internal border controls were also reintroduced in response to the persistent terrorist threat following a spate of attacks on European soil. The COVID-19 pandemic has also presented an unprecedented challenge and has placed a major strain on the Schengen area, leading many more Member States to reintroduce internal border controls, at times jeopardising the proper functioning of the Single Market. All this has undermined the climate of trust needed to sustain an area free from internal border controls. For these reasons, the Commission announced that it would aim to complete the range of tools necessary to ensure the proper functioning of the Schengen area in order to put the ecosystem of rules back into balance and restore and reinforce mutual trust between Member States. One such measure to make the Schengen area stronger and more resilient is a new proposal for an amendment to Regulation (EU) No 2016/399 2 (“Schengen Borders Code”). This proposal is a key deliverable from the Roadmap for a New Pact on Migration and Asylum. All the solutions proposed in the New Pact on Migration and Asylum will contribute to effective migration management, closer cooperation, responsibility - sharing among Member States and a binding solidarity framework, thereby reinforcing the Schengen area. A well-functioning Schengen area requires rules to be applied in a uniform way, both at the external and internal borders. It relies on trust among the Member States, efficient controls of the external borders and alternative measures on the territory of the Member States in order to assure a high level of security within the Schengen area, in the absence of internal border controls. While the framework set out by the Schengen Borders Code provides tools to tackle challenges such as the ones experienced over the last years, there is a room for improvement of specific aspects concerning in particular the capacity to respond in a uniform manner to major public health threats, the capacity to respond to threats resulting from instrumentalisation of migrants as well as the means to respond, within the territory, to terrorism or unauthorised movements. In view of the emerging challenges to the Schengen area, a number of targeted changes to the current rules set out in the Schengen Borders Code are required in relation to both external and internal borders as well as in relation to the powers exercised within the Member States’ territories, without putting into question the division of responsibilities between the Union and the Member States. This proposal must be seen in the context of ongoing intiatives to improve Schengen’s overall governance. Drawing on the work of the Schengen Forum 3 established in 2020, the Commission will adopt in early 2022 a ‘State of Schengen Report’ summarising the situation as regards the absence of internal border controls, the results of Schengen evaluations, and the state of implementation of recommendations. The Commission will integrate into these reports a ‘State of Schengen Scoreboard’ to assess in an interconnected manner the implementation of the Schengen acquis in the different policy fields and better support Member States in addressing any challenges. The Commission has also proposed to revise the Schengen Evaluation and Monitoring Mechanism to make it more efficient, strategic and better equipped to tackle new realities and challenges. The revision will increase the Mechanism’s capacity to facilitate political dialogue on the state of Schengen, focusing on those areas that have the potential to jeopardise the functioning of the Schengen area as a whole. External Borders Schengen’s existence presupposes a high degree of trust in a robust management of the external borders. Based on the experiences covering the period until late 2021, the management of external borders should be reinforced as regards the following two aspects: · Health related challenges T he COVID-19 crisis has shown that the current rules are not sufficient to respond to crisis situations linked to diseases with epidemiological potential. The global character of COVID ‑ 19 required ad hoc measures at the external borders to slow down transmission across borders . I n March 2020, the Commission proposed a coordinated decision on applying travel restrictions on non-essential travel from third countries into the Schengen area. This led to the adoption of a Council Recommendation in June 2020 4 , with the objective of facilitating a unified approach when it comes to restricting access to the European Union of travellers coming from countries with a highly problematic epidemiological situation. However, although Member States agreed among themselves on a list of third countries for which the restriction on non-essential travel could be lifted, they have applied the Recommendation referred to above in very different ways 5 . Only some have been applying the list of countries in full, while others decided to lift the restrictions only to some or even none of the countries on the list. Other Member States lifted the restrictions to third countries that were not on the list at all, thus undermining the desired unified approach. A new procedure is needed to codify a consistent pra c tice and avoid the currently experienced discrepancies. · Challenges related to the instrumentalisation of migrants As stated in the Commission Communication on responding to state-sponsored instrumentalisation of migrants at the EU external border 6 , in the renewed EU action plan against migrant smuggling (2021-2025) adopted by the Commission on 29 September 2021 7 , as well as in the C ommission proposal for a Regulation on measures against transport operators that facilitate or engage in trafficking in persons or smuggling of migrants in relation to illegal entry into the territory of the European Union 8 , a highly worrying phenomenon observed is the increasing role of State actors in artificially creating and facilitating irregular migration, using migratory flows as a tool for political purposes to destabilise the European Union or its Member States. As expressed in the October 2021 European Council conclusions 9 , the EU and the Member States are committed to giving a response to this increasing role of State actors in facilitating irregular migration and using human beings to create pressure at the EU’s external borders. The European Council invited the Commission to propose any necessary changes to the EU’s legal framework to address the issue of instrumentalisation. To this end, it is first necessary to define what is to be understood by ‘instrumen t alisation’. Moreover, there is a need to clarify what measures Member States can take under the Schengen Borders Code in order to protect the EU’s common external borders effectively against the instrumentalisation of migra n t s for political purposes. In paral l el, the Commission is proposing additional measures under the asylum and return a c quis to further clarify how Member States can and should respond in situations of instrumentalisation while ensuring full protection o f the rights of migrants that are instrumentalised, including the right to asylum and protection against non-refoulement . In line with the Schengen Borders Code, ‘ Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations ’ 10 . It is therefore clear that the Member States with external Schengen borders carry a double responsibility: vis-à-vis all persons benefiting from the possibility to travel without being subject to internal border controls and vis-à-vis their own citizens and business . The Schengen Borders Code contains general rules applicable at the border crossing points (Article 5) and on border surveillance (Article 13) to enable Member States to deliver on border management objectives as mentioned above. However, it is necessary to reinforce those rules to recognise the responsibility of Member States with external Schengen borders and reply to the new challenges created by the phenomenon of instrumentalisation. Measures at internal borders and within the territory The very essence of the Schengen project is the absence of controls at internal borders allowing all persons legally staying in the Union to fully benefit from the possibility to travel without being subject to internal border controls. Based on the experiences covering the period until autumn 2021, the following aspects must be reviewed and reinforced in order to preserve the Schengen area: · Response to challenges that affect a majority of Member States Although reintroducing border checks can be a legitimate measure to address serious threats to internal security and public policy, in particular when an urgent response is needed (e.g. terrorist attacks), the geographical scope and duration of these border checks may render the movement of persons and the free circulation of goods more difficult . Even if, per se , internal border checks are without prejudice to the right of free movement, in practice the absence of such chec k s facilitates the movement of persons . Th e impact of reintroduced bo r der checks has been particularly visible at the internal land borders, affecting the multiple economic and social ties in cross-border regions with the 150 million persons living in these regions 11 and some 3.5 million people crossing internal Schengen-area borders every day 12 . In 2020, the numerous reintroductions of border checks at internal borders intended to help contain the spread of COVID-19 often affected the local capacities to ensure essential services on both sides of the border. A lack of coordination of national measures in response to the COVID-19 pandemic further impacted the transport sector by limiting cross-border transport operations, often amplifying the effects of the initial shock and adding to the disruption of the supply chains. A new p rocedure is needed to ensure a more coordinated approach in case of crisis situation s affecting a majority of Member States, whilst fully respecting the sovereign right of Member States to reintroduce border controls. Building on the wide range of guidelines and recommendations adopted for the COVID‑19 pandemic, such as the ‘Green Lanes’ system 13 , the Commission will also improve the contingency planning for Schengen. For this reason , it w ill codify the pertinent mitigating measures in the Practical Handbook for Border Guards to become a natural point of reference for border guards in a crisis situation . · Better use of alternative measures The COVID-19 pandemic, the migratory crisis of 2015 as well as increased terrorist threats have put the Schengen area to the test in recent years 14 . In response to these challenges, some Member States decided to reintroduce border checks at some or all of their internal borders 15 . While, at first, such decisions responded to clearly identifiable events, and for a certain period of time were underpinned by Council Recommendations 16 , they now appear to have become a permanent precautionary measure. Long-lasting internal border controls have revealed the limits of the current tools that the Union has to assess the necessity and proportionality of prolonged controls. Therefore, the rules defining internal border controls as a measure of last resort should be reinforced. In the same vein, the long-lasting internal border controls drew attention to the limited use Member States make of alternative measures which, in many instances can be sufficient to ensure a high level of security without the need of restoring border controls at internal borders. This concerns in particular the exercise of police powers. The Commission’s 2017 Recommendation on police checks and cross-border police cooperation 17 encouraged Member States to make better use of their police powers and to give precedence to police checks before deciding on the temporary reintroduction of internal border controls . Over the past four years, a number of Member States have intensified police checks in the border areas in the context of the increased threats to public policy or internal security. Some of those cases set examples of good practice in addressing persistent, increased threats to public policy or internal security. Indeed, such checks can often prove equally or more efficient than internal border controls, notably as they are more flexible than static border controls at specific border crossing points and can be adapted more easily to evolving risks. In order to ensure that the potential of the se measures is fully used, a Me m ber State that considers prolonging the reintroduction of border control should first assess whether the border control can be replaced by such alternative measures. In addition, the experience related to the COVID-19 pandemic made it clear that also other, not typically police-related public powers (e.g. checks related to public health) may make the reintroduction of internal border controls unnecessary . For this reason, the list of alternative measures that should not be considered as equating to internal border controls should be reviewed . Improved police cooperation can expand the set of alternatives to internal border controls available to Member States. To this end, the Commission adopted on 8 December 2021 legislative proposals for an EU Police Cooperation Code. The Code will provide a coherent EU legal framework to ensure that law enforcement authorities have adequate access to information held by other Member States when they need it to fight crime and terrorism. Finally, the persistence of internal border controls in relation to unauthorised movements justifies modifications to enable Member States to better address such challenges without needing to resort to internal border controls. * In view of the above, there is an urgent need to address problems affecting the external and internal borders of the Schengen area related to the following: a) Measures at the external borders to address threats related to the major public health threats such as pandemics and instances of instrumentalisation of migrants ; b) Conditions for the reintroduction of border checks at internal borders and use of other measures to their full potential to ensure a sufficiently high level of security without needing to resort to internal border controls. Specific objectives and main elements of the proposal The proposal has the following specific objectives: a) Uniform application of measures at the external borders in case of a threat to public health. The proposal aims to establish a new mechanism which should allow for a timely adoption, by the Council, of a binding instrument setting out temporary travel restrictions at the external borders in these circumstances. Thanks to this mechanism, travel restrictions will apply uniformly in all Member States for as long as the threat to public health persists in the Union. The proposal determines in a comprehensive manner all necessary elements of an instrument to be adopted by the Council in an implementing act. Accordingly, such an instrument should specify any categories of persons exempted from travel restrictions, even in situations where they travel for non-essential reasons, and/or, on the basis of objective indicators, any geographical areas or third countries from which travel may be subject to specific measures, e.g. travel restrictions. Furthermore, it should define any additional conditions to be imposed on travellers to make travel safe. In line with obligations under Union and international law, Union citizens and third-country nationals who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens and their repective family members should always be permitted to enter the Union. Residents should always be permitted to return to the Union. Moreover, the instrument should define a minimum list of categories of travelers that are considered necessary in connection with essential functions or needs and should therefore not be covered by measures under this instrument. This list should reflect in particular international obligations of the Union and its Member States to allow travel, while it will be left to the individual Council decisions to define additional categories of essential travel, if needed, depending on the specific threat. The instrument could also set up an emergency brake mechanism, allowing to take relevant measures in case the epidemiological situation dramatically worsens in one or more geographical areas. b) Response to instrumentalisation of migrants at external borders The proposal aims to address the instrumentalisation of migrants, where a third country actor is using human beings to destabilise the Union or its Member States. The proposal defines in Article 2 what should be understood by ‘instrumentalisation’. Moreover, the proposed modification of Article 5 and Article 13 should clarify what measures are available at the border crossing points and in the context of border surveillance to prevent and react to illegal border crossings when Member States of first entry are confronted with such pressure from a third country. In addition, a new proposal on exceptional asylum and return procedures aims to ensure coherence with this approach by introducing provisions that allow Member States to take the measures neeeded to manage in a humane, orderly and dignified manner, fully respectful of fundamental rights and humanitarian principles, the arrival of persons being instrumentalised by a third country. c) Creation of a contingency planning for Schengen in the situation of a threat affecting a majority of Member States at the same time The proposal aims to create a new mechanism allowing for a European response to problems affecting a majority of Member States at the same time and thus putting the overall functioning of the Schengen area at risk. This new mechanism should complement the existing mechanism for serious persistent deficiencies at the external borders, as currently set out in Article 29 of the Schengen Borders Code. It should fully respect the right of the Member States to take the necessary actions when confronted with an immediate threat and offer the Council the possibility to authorise, based on a proposal from the Commission, the reintroduction of internal borders controls in some or all Member States affected by the identified threat, thus providing a coherent framework for the use of internal border controls by the Member States and defining appropriate mitigating measures. Upon proposals from the Commission, such an authorisation may be prolonged for further periods of up to six months each, as long as the threat is found to persist. Where the Commission considers that an authorisation to reintroduce internal border controls would not be appropriate, it should, instead, adopt a recommendation specifying the measures that seem more appropriate to deal with the threat than internal border controls or measures that may complement the internal border controls. d) Procedural safeguards in case of unilateral reintroductions of internal border controls In order to ensure that internal border controls remain a measure of last resort, the proposal clarifies and expands the list of elements that must be assessed by a Member State when taking the decision on temporary reintroduction of border controls. These elements would include the appropriateness of the measure of reintroducing border controls at an internal border and the likely impact of such a measure on movement of persons within the area without internal border control and on the cross-border regions. Moreover, where a Member State decides to prolong internal border controls in response to foreseeable threats, such an assessment should also include the assessment of the appropriateness and the use of alternative measures such as proportionate checks carried out in the context of the lawful exercise of public powers by competent authorities in the border region, the use of the refusal procedure for third country nationals crossing the internal border and police cooperation as provided for under Union law. In addition, prolongations concerning foreseeable threats exceeding 6 months should also include a risk assessment. As today, the Commission or any other Member States may at any time adopt an opinion on the necessity and proportionality of reintroduced internal border controls. Wherever internal controls have been in place for a total of 18 months, the Commission will be required to issue an opinion on their proportionality and necessity and launch a consultation process with the Member States. In order to take account of the experience that certain threats can persist for a considerable amount of time, the possibility to prolong border control in these cases is extended to a total maximum period of two years. However, the proposal recognises that Member States may see the need to maintain internal border controls beyond this timeframe. In such cases, the Member State concerned should inform the Commission, while substantiating in its new notification the maintenance of the threat, including with a risk assessment and taking into account the opinion of the Commission issued in case of border controls lasting 18 months. In such a case, the Commission shall issue a follow-up opinion. Moreover, in order to enable a post factum analysis, Member States should remain obliged to submit a report on the reintroduction of border control at internal borders to the European Parliament, the Council and the Commission, after having lifted the controls. Furthermore, where border controls are maintained beyond a period six months, such a report should be submitted after twelve months, and every year thereafter for as long as the controls are maintained. e) Application of mitigating measures and specific safeguards for cross-border regions in cases where internal border controls are reintroduced The proposal also provides that safeguards should always be applied, to limit the negative impact of the temporary reintroduction of border checks at internal borders, should this reintroduction be inevitable, in particular to limit their impact on the functioning of cross-border regions, transport and, thus, on the Single Market. Examples for the mitigating measures which should be complied with during reintroduced border controls are in particular those set out in the guidelines and recommendations developed in 2020 in relation to the COVID-19 crisis. f) Increased use of alternative measures to address the identified threats instead of internal border controls The proposal aims to ensure a high level of security within the Schengen area in a proportionate manner. To this end, the proposal clarifies the possibility for Member States to make more extensive use of checks other than border controls in border areas. These checks should not necessarily be carried out by police authorities, but could involve any other authorities competent under national law 18 to exercise public powers . In all cases, competent authorites must respect the existing safeguards developed by European Court of Justice case-law 19 for the exercise of police powers, in particular, by providing the necessary framework for the power granted to those authorities to carry out identity checks, including to guide the discretion which those authorities enjoy in the practical application of that power, in order to ensure that these checks do not become equivalent to border controls . In the provision of such guidance, Member States should also ensure that discretion exericed by competent authorities is carried out in full respect of fundamental rights , in particular the prohibition of discrimination. In order to provide further means to Member States to use alternative measures to address the problem of unauthorised movements of irregular migrants , the proposal introduces a possibility of transferring irregular migrants if there is a clear indication that the person apprehended at the internal borders as part of cross-border police operational cooperation has just arrived from that other Member State (for instance, registration in Eurodac by another Member State or recent bills issued in the other Member State ) . In view of the initiative concerning the cross-border police cooperation put forward on 8 December 2021 , this new procedure should encourage the use of joint patrols as a tool allowing this simplified transfer of persons apprehended at the internal borders to be applied . The proposal also provides for lifting of the ‘stand-still’ clause currently applicable to the existing bilateral agreements and arrangements between Member States on this issue, as referred to in Article 6(3) of the Return Directive 20 and determining the conditions under which irregular migrants can currently be sent back once apprehended in a situation of illegal stay in a Member State. The proposal contains a targeted modification to Article 6(3) of the Return Directive that would allow Member States to put in place more effective bilateral readmission agreements and arrangements, able to address the challenges related to unauthorised movements. The modification would equally require Member States to notify such agreements and arrangements to the Commission. Moreover, the Commission is ready to prepare a model bilateral agreement for the main clauses of such agreements, based on a review of existing agreements, in order to support the Member States in this task of creating an efficient tool for managing unauthorised movements. T he proposal also removes obstacles for a more extensive use of monitoring and surveillance technologies, and clarifies that the Schengen Borders Code does not prevent the use of passenger data such as Passenger Name Records or Advanced Passenger Information on intra-Schengen connections 21 , in case this would be allowed by the applicable law. 
Revised version (Article 8 Border checks on persons):
1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out. 2a. Where the checks against the databases referred to in points (a) and (b) of paragraph 2 would have a disproportionate impact on the flow of traffic, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points, following an assessment of the risks related to the public policy, internal security, public health or international relations of any of the Member States. The scope and duration of the temporary reduction to targeted checks against the databases shall not exceed what is strictly necessary and shall be defined in accordance with a risk assessment carried out by the Member State concerned. The risk assessment shall state the reasons for the temporary reduction to targeted checks against the databases, take into account, inter alia, the disproportionate impact on the flow of traffic and provide statistics on passengers and incidents related to cross-border crime. It shall be updated regularly. Persons who, in principle, are not subject to targeted checks against the databases, shall, as a minimum, be subject to a check with a view to establishing their identity on the basis of the production or presentation of travel documents. Such a check shall consist of a rapid and straightforward verification of the validity of the travel document for crossing the border, and of the presence of signs of falsification or counterfeiting, where appropriate by using technical devices, and, in cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard shall consult the databases referred to in points (a) and (b) of paragraph 2. The Member State concerned shall transmit its risk assessment and updates thereto to the European Border and Coast Guard Agency (‘the Agency’), established by Regulation (EU) 2016/1624 of the European Parliament and of the Council ( 12 ), without delay and shall report every six months to the Commission and to the Agency on the application of the checks against the databases carried out on a targeted basis. The Member State concerned may decide to classify the risk assessment or parts thereof. 2b. Where a Member State intends to carry out targeted checks against the databases pursuant to paragraph 2a, it shall notify the other Member States, the Agency and the Commission accordingly without delay. The Member State concerned may decide to classify the notification or parts thereof. Where the Member States, the Agency or the Commission have concerns about the intention to carry out targeted checks against the databases, they shall notify the Member State in question of those concerns without delay. The Member State in question shall take those concerns into account. 2c. The Commission shall, by 8 April 2019, transmit to the European Parliament and the Council an evaluation of the implementation and consequences of paragraph 2. 2d. With regard to air borders, paragraphs 2a and 2b shall apply for a maximum transitional period of six months from 7 April 2017. In exceptional cases, where, at a particular airport, there are specific infrastructural difficulties requiring a longer period of time for adaptations in order to allow for the carrying-out of systematic checks against the databases without having a disproportionate impact on the flow of traffic, the six-month transitional period referred to in the first subparagraph may be prolonged for that particular airport by a maximum of 18 months in accordance with the procedure specified in the third subparagraph. For that purpose, the Member State shall, at the latest three months before the expiry of the transitional period referred to in the first subparagraph, notify the Commission, the Agency and the other Member States of the specific infrastructural difficulties in the airport concerned, the envisaged measures to remedy them and the required period of time for their implementation. Where specific infrastructural difficulties requiring a longer period for adaptations exist, the Commission, within one month of receipt of the notification referred to in the third subparagraph and after consulting the Agency, shall authorise the Member State concerned to prolong the transitional period for the airport concerned and, where relevant, shall set the length of such prolongation. 2e. The checks against the databases referred to in points (a) and (b) of paragraph 2 may be carried out in advance on the basis of passenger data received in accordance with Council Directive 2004/82/EC ( 13 ) or in accordance with other Union or national law. Where those checks are carried out in advance on the basis of such passenger data, the data received in advance shall be checked at the border crossing point against the data in the travel document. The identity and the nationality of the person concerned, as well as the authenticity and the validity of the travel document for crossing the border, shall also be verified. 2f. By way of derogation from paragraph 2, persons enjoying the right of free movement under Union law who cross the internal land borders of the Member States for which the verification in accordance with the applicable Schengen evaluation procedures has already been successfully completed, but for which the decision on the lifting of controls on their internal borders pursuant to the relevant provisions of the relevant Acts of Accession has not yet been taken, may be subject to the checks on exit referred to in paragraph 2 only on a non-systematic basis, based on a risk assessment. 4. Where facilities exist and if requested by the third-country national, such thorough checks shall be carried out in a private area. 4a. Where on entry or exit, consultation of the relevant databases including the multiple-identity detector through the European search portal established by Article 25(1) and Article 6(1) of Regulation (EU) 2019/817 of the European Parliament and of the Council ( 14 ) respectively results in a yellow link or detects a red link, the border guard shall consult the common identity repository established by Article 17(1) of that Regulation or SIS or both to assess the differences in the linked identity data or travel document data. The border guard shall carry out any additional verification necessary to take a decision on the status and colour of the link. In accordance with Article 69(1) of Regulation (EU) 2019/817, this paragraph shall apply as from the start of operations of the multiple-identity detector under Article 72(4) of that Regulation. 5. Without prejudice to the second subparagraph, third-country nationals subject to a thorough second line check shall be given written information in a language which they understand or may reasonably be presumed to understand, or in another effective way, on the purpose of, and the procedure for, such a check. This information shall be available in all the official languages of the Union and in the language(s) of the country or countries bordering the Member State concerned and shall indicate that the third-country national may request the name or service identification number of the border guards carrying out the thorough second line check, the name of the border crossing point and the date on which the border was crossed. 6. Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive 2004/38/EC. 7. Detailed rules governing the information to be registered are laid down in Annex II. 8. Where Article 5(2)(a) or (b) applies, Member States may also provide derogations from the rules set out in this Article. 9. The third-country nationals shall be informed of the maximum number of days of authorised stay, which shall take into account the number of entries and the length of stay authorised by the visa. That information shall be provided either by the border guard at the moment of the border checks or by means of equipment installed at the border crossing point enabling the third-country national to consult the web service as referred to in Article 13(1) and (2) of Regulation (EU) 2017/2226.
Article 9 Relaxation of border checks
1. Border checks at external borders may be relaxed as a result of exceptional and unforeseen circumstances. Such exceptional and unforeseen circumstances shall be deemed to be those where unforeseeable events lead to traffic of such intensity that the waiting time at the border crossing point becomes excessive, and all resources have been exhausted as regards staff, facilities and organisation. 2. Where border checks are relaxed in accordance with paragraph 1, border checks on entry movements shall in principle take priority over border checks on exit movements. The decision to relax checks shall be taken by the border guard in command at the border crossing point. Such relaxation of checks shall be temporary, adapted to the circumstances justifying it and introduced gradually. 3. Even in the event that checks are relaxed, the border guard shall stamp the travel documents of third-country nationals both on entry and exit, in accordance with Article 11. 4. Each Member State shall transmit once a year a report on the application of this Article to the European Parliament and the Commission.
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 9 Relaxation of border checks):
1. Border checks at external borders may be relaxed as a result of exceptional and unforeseen circumstances. Such exceptional and unforeseen circumstances shall be deemed to be those where unforeseeable events lead to traffic of such intensity that the waiting time at the border crossing point becomes excessive, and all resources have been exhausted as regards staff, facilities and organisation. 2. Where border checks are relaxed in accordance with paragraph 1, border checks on entry movements shall in principle take priority over border checks on exit movements. The decision to relax checks shall be taken by the border guard in command at the border crossing point. Such relaxation of checks shall be temporary, adapted to the circumstances justifying it and introduced gradually. 3. Even in the event that checks are relaxed, the border guard shall enter the data in the EES, in accordance with Article 6a. Where the data cannot be entered by electronic means, it shall be entered manually. 4. Each Member State shall transmit once a year a report on the application of this Article to the European Parliament and the Commission.