EUROPEAN
COMMISSION

Brussels, 27.9.2017
COM(2017) 571 final
2017/0245 (COD)

Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary
reintroduction of border control at internal borders

EN

EN

EXPLANATORY MEMORANDUM
1.

CONTEXT OF THE PROPOSAL

•

Reasons for and objectives of the proposal

Over the last two years, the European Union has witnessed a significant increase of temporary
reintroduction of border control at internal borders. Since September 2015, border controls
have been reintroduced and prolonged almost 50 times (as compared to 36 cases of
reintroduced border controls in the period 2006-20151). This was due to the secondary
movements of irregular migrants and the increase of cross-border terrorist threats posing a
serious threat to the internal security or public policy of a number of Schengen States. These
serious threats compelled some Member States to prolong reintroduced border control several
times, sometimes until the exhaustion of the current legal time frames.
Already in May 2017 the Commission recognised that new security challenges have arisen in
the past years, as demonstrated by repeated terrorist attacks. In this respect, whilst the current
legal framework has been sufficient to address challenges faced until now, the Commission
started a reflection on whether it is sufficiently adapted to address the evolving security
challenges.
Based on the current Schengen rules, border controls at internal borders are possible for
longer than six months when there are serious deficiencies in the external border management
of a Member State, as demonstrated during a Schengen Evaluation, which put the overall
functioning of the area without internal border control at risk or as a result of the noncompliance of a Member State with a Council decision identifying measures to mitigate the
risks in the control of external borders jeopardising the functioning of the Schengen area
(Article 29 of the Schengen Borders Code procedure, as modified by Regulation (EU)
2016/1624 of 14 September 2016 on the European Border and Coast Guard)2. In such cases,
the Council, based on a proposal of the Commission, can recommend that one or more
Member States decide to reintroduce border control at all or at specific parts of their internal
borders, for a specific period of time, not exceeding six-months periods, renewable three
times3.
In situations where the serious threat to public policy or internal security is not related to
deficiencies in the management of the external borders as demonstrated during a Schengen
Evaluation, the reintroduction of border control at internal borders is subject to the conditions
and time limits set out in Articles 25 to 28 of the Schengen Borders Code. Accordingly,
border control at internal border can be carried out for up to six months - in case of
foreseeable events such as international sport or political events (Article 25), or for up to two
months - in cases requiring immediate action (Article 28). In the interpretation of the
1

See the list of the reintroduced border controls at internal borders https://ec.europa.eu/homeaffairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-bordercontrol/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf.
2
In line with this procedure, on 12 May 2016 the Council recommended, on the basis of a Commission
proposal, that five Member States most affected by the secondary movements reintroduce border controls at
some of their internal borders. On 12 May 2017 the Council, authorised these five Member States for the third
and last time to extend these controls until 11 November 2017.
3
With the new European Border and Coast Guard Regulation which has brought new resources and tools
(such as the mandatory vulnerability assessments and their follow up recommendations, and the mandatory
pooling of resources) the EU border management is more resilient to new challenges, should they arise again.
This should significantly limit the grounds for temporary reintroduction of border controls at internal borders in
relation to the situation at the external borders.

EN

2

EN

Commission, the periods of reintroduced border control under Articles 28 and 25 can
cumulate. This means that with regard to decisions on reintroduction of border controls based
on different grounds, each notification is examined individually and on its own merits with
the applicable deadlines applying for each particular case.
Overall, the use of temporary reintroduction of border control shows that the Member States
apply this measure in a responsible manner4. The costs of a non-Schengen simulation clearly
demonstrate that this is always a costly decision for the economy5.
In the past two years, the rules and procedure for prolongation of temporary internal border
control proved however to be insufficiently adapted to address the increased threats to public
policy or internal security. The current rules are also not promoting the use of alternative
measures to mitigate serious threats. Moreover there is a need to ensure that the Member State
intending to reintroduce or prolong border controls cooperates with its neighbouring Member
States. Finally, there is a need to better reflect in the legal framework the obligation for
Member States to assess, well in advance of the decision on the reintroduction of internal
border control, if and how the available alternative measures could address the identified
threat, in line with the Commission Recommendation of 12 May 2017 on proportionate police
checks and cross-border cooperation in the Schengen area, which, among others encouraged
Member States to give precedence to proportionate police checks over the temporary
reintroduction of border control in case of a serious threat to internal security or public policy.
In light of these considerations, the Commission came to the conclusion that there is a need to
update the rules concerning the temporary reintroduction of border control at internal borders.
In line with that conclusion, the objective of the proposal is:
–

to ensure that the time limits applicable to the temporary border control at internal
borders enable Member States to take, when necessary, the measures needed to
respond to a serious threats to internal security or public policy;

–

to introduce better procedural safeguards in order to ensure that the decision on
temporary border control at internal borders or their prolongation is based on a
proper risk assessment and is taken in cooperation with the other Member States
concerned;

–

To that end, it is proposed that:

–

the time limit for temporary reintroduction of border control at internal borders for
the foreseeable duration of the serious threat is increased up to one year (instead of
six months) and the limit for the length of prolongation periods is increased from up
to 30 days to up to 6 months.

4

Between 2006 i.e. the date of adoption of the Schengen Borders Code and 2015, i.e. at the wake of the
migratory crisis, border controls have been reintroduced 36 times and hardly ever have been prolonged, lasting
normally only for a few days or weeks.
5
According to the Commission analysis of direct economic cost of non-Schengen i.e. the situation where
the border controls have been reintroduced for a longer period of time delays at the borders would have a
substantial impact on cross-border transport (notably through road), tourism, public administrations and crossborder workers and travellers. For those categories, the direct costs are estimated to range between €5 and €18
billion per year (or 0.06%-0.13% of GDP), depending on the time spent due to delays. The medium-term indirect
costs of non-Schengen may be considerably higher than those direct estimates, as the impacts on intracommunity trade, investment and mobility would be unprecedented if rolling-back Schengen puts at risk the
economic integration.

EN

3

EN

–

Member States will prepare and submit a risk assessment assessing how long the
identified threat is expected to persist and which sections of the internal borders are
affected, and demonstrating that the prolongation of internal border control is a last
resort measure; if border controls are prolonged for more than six months, the
Member State will also explain retrospectively how border control contributed to
address the identified threat; in order to guarantee the quality of such risk
assessments, the relevant Agencies (European Border and Coast Guard and Europol)
will be involved by the Commission.

–

a better follow up to the opinion of the Commission expressing concerns on the
necessity or proportionality of border controls and the consultation procedure
involving the Commission, Member States and, as now proposed, relevant Agencies,
is put in place; the need for cooperation with the neighbouring Member States
affected by the intended border controls will be better ensured in the existing
consultation procedure.

–

a new possibility is introduced to extend internal border controls by a maximum
period of two years where the serious threat to internal security or public policy
persists beyond the one-year deadline, provided that it can be attributed to the same
grounds (e.g. threat related to the operation of a cross-border terrorist network) and
that commensurate exceptional national measures are taken within the territory to
address the threat (such as the state of emergency).

In the context of these amendments, the proposal also clarifies the wording determining the
deadline applicable under Article 29 of the Schengen Borders Code.
The proposal does not change the grounds for the temporary reintroduction of border control
at internal borders as envisaged by the Schengen Borders Code.
•

Consistency with existing policy provisions in the policy area

The proposal modifies the general deadlines for temporary reintroduction of border control at
internal borders as set out in Article 25, namely, in case of foreseeable events/threats, while
preserving the current principle of temporary reintroduction of border control and safeguards
applicable thereto, with, on one hand, the Commission having the power (and the duty, in
cases beyond six months) to take a stance on the necessity and proportionality of the intended
checks and, on the other, the 'consultation procedure' as referred to in Article 27(5) of the
Schengen Borders Code, now to be reinforced by the participation of the relevant Agencies
having the expertise to assess the information submitted by the Member State concerned in
the notification and the risk assessment. Moreover, the criteria for the temporary
reintroduction of border control at internal borders set out in Article 26 of the Schengen
Borders Code will continue to apply.
The proposal strengthens the principle that reintroducing controls at internal borders must be a
last-resort measure. Under Article 23 of the Schengen Borders Code, Member States remain
entitled to carry out police checks within the territory, including in the border area, which in
some cases can be an effective alternative to the temporary reintroduction of internal border
control. The requirement to present a risk assessment demonstrating that the intended
reintroduction or prolongation of border controls is a last resort measure should further
encourage Member States to consider the use of alternative measures such as reinforced
police measures. In that respect, the proposal will further support the implementation of the
Commission Recommendation on proportionate police checks within the territory6, where the
6

EN

C(2017) 3349 final.

4

EN

Commission specifically encouraged Member States to give precedence to police checks over
the temporary reintroduction of border controls at internal borders.
The proposed changes are consistent with Article 72 TFEU as they do not affect the exercise
of the responsibilities incumbent upon Member States with regard to the maintenance of law
and order and the safeguarding of internal security.
Article 29 of the Schengen Borders Code will continue to offer the only possibility to prolong
border controls at internal borders in case of serious deficiencies in the management of the
external borders by a Member State as demonstrated by a Schengen Evaluation. This
possibility has been recently reinforced by relevant provisions in the European Border and
Coast Guard Regulation, where the lack of proper follow-up from the side of a Member State
to a negative vulnerability assessment or the lack of request from a Member State for
sufficient support from the European Border and Coast Guard Agency to respond to a specific
and disproportionate pressure at its external borders putting at risk the functioning of the
Schengen area, could justify temporary reintroduction of border controls at internal borders
(Article 19(10) of the Schengen Borders Code).
•

Consistency with other Union policies

Pursuant to Article 26 of the Schengen Borders Code which continues to apply, any decision
on temporary reintroduction or prolongation of internal border control should take into
account, in particular, the likely impact of such measure on the free movement of persons
within the area without internal border control. In this context, it should be recalled that
Directive 2004/38/EC7 does not contain a right to be free from security checks on the
occasion of crossing the borders at which controls are carried in line with the Schengen
Borders Code. Therefore, the updating of the maximum period of border control at internal
borders does not per se imply a negative impact on the freedom of movement; only the
abusive use of such possibility could affect the freedom of movement.
To mitigate such risk, it is proposed that besides the existing possibility for the Commission
to voice at any moment its concerns related to the necessity or proportionality of border
controls (their reintroduction or prolongation), there will be now an obligation on the
Commission to issue an opinion whenever border controls are carried out for longer than six
months. The consultation procedure contains a further safeguard as it should now also involve
the relevant Agencies. The proposed text for the consultation procedure, which would be led
by the Commission, clarified that the views of the Member States affected by such controls
are duly taken into account.
The proposal contributes to enhancing security within the Schengen area by giving Member
States a legal possibility to prolong, where necessary, internal border control to respond to a
serious threat to public policy or internal security that justifies such controls.
Updating the Schengen legal framework in light of experience in facing up to new challenges
in order to preserve its capacity to respond appropriately to persistent serious threats to public
policy or internal security, offering additional time that might be necessary to address them, is
fully in line with the Commission's work set out in the European Agenda on Migration and
the European Agenda on Security.

7

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of
citizens of the Union and their family members to move and reside freely within the territory of the Member
States, OJ 158/77 of 30.4.2004.

EN

5

EN

2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•

Legal basis

The proposal is based on Article 77 (2)(e) TFEU.
The proposal amends Regulation (EU) No 2016/399 of the European Parliament and of the
Council of 9 March 2016 on a Union Code on the rules governing the movement of persons
across borders (Schengen Borders Code).
•

Subsidiarity (for non-exclusive competence)

Action in the area of freedom, security and justice falls within an area of competence shared
between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the
subsidiarity principle is applicable by virtue of Article 5(3) TEU, according to which the
Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.
The proposal modifies the existing provisions of Chapter III of the Schengen Borders Code
related to the temporary reintroduction of border control at internal borders, in a limited
manner, with a view to respond to the recent experience in the last years where a number of
Member States prolonged several times the initial periods of reintroduced border control at
internal borders.
The proposal also reinforces the obligations of Member States vis-à-vis neighbouring Member
States, affected by the intended reintroduction or prolongation of border control, as the
efficiency of the current provisions in this regard proved to be limited.
The objective of defining the scope, duration and procedure for exceptionally prolonging
temporary controls at specific section(s) of the internal borders, taking into account the
responsibilities of the Member States with regard to public order and internal security as well
as the need to limit controls at internal borders to what is strictly necessary, so as to preserve
the area without controls at internal borders, cannot be sufficiently achieved by the Member
States acting alone, and can be better achieved at the level of the Union. The Union may
therefore adopt the proposed measures, in accordance with the principle of subsidiarity.
•

Proportionality

The proposed changes in the rules on temporary reintroduction of border control at internal
borders are proportionate to the objective of protecting public policy and ensuring internal
security in the area without internal border controls.
The proposal fully recognises that under the Schengen rules the temporary reintroduction of
border control and its subsequent prolongation must remain an exception, subject to specific
rules common for the members of the Schengen area.
The proposal is responding to the identified shortcoming in the existing rules as regards
persistent threats to public policy and internal security which have been experienced by some
Member States in recent years (such as cross-border terrorist threats, secondary movements of
irregular migrants that justified the temporary reintroduction of internal border control).
Based on this experience, it appears that even the practice accepted by the Commission to
combine the maximum time limits for border control at internal borders based on Article 28
(events requiring immediate actions) and Article 25 (foreseeable events) may prove to be
insufficient to address certain long-lasting threats.
To that end, the proposal:

EN

6

EN

1) Extends the general deadline for foreseeable events up to one year.
This maximum deadline is expected to be applied if threats to public policy or internal
security cannot be addressed within a few months; this possibility should not affect the
average length of border control reintroduced based on the most frequent grounds related
generally to sport or high level political events. To recall, within these limits set out by the
Schengen Borders Code the decision on the actual duration of the temporary reintroduction of
border controls under Article 25 or 28 of the Schengen Borders Code is in hands of the
Member State. However, as the scope and duration of the temporary reintroduction of border
control at internal borders should not exceed what is strictly necessary to respond to the
serious threat, the Commission can oversee the actual length of such controls and may issue
an opinion in this respect; in case of concerns related to the necessity or proportionality of the
reintroduced border controls, or when border control at internal borders is carried out for more
than six months, the Commission is obliged to issue an opinion.
Furthermore, any possible abuse of the updated timeframe will be also addressed under the
general powers of the Commission as the guardian of the Treaties.
Moreover, any reintroduction or prolongation of border controls will be subject to risk
assessment which should look into the expected length of the threat and the border sections
affected, assess the available measures and explain why the chosen one is considered to be the
best to address the identified threat. After six months of effective border control, the risk
assessment should also provide an analysis of how the previous prolongation(s) contributed to
remedying the identified threat.
2) The proposal also introduces a possibility exceptionally to prolong internal border control
if the same threats persist beyond one year but only if the serious threat to public policy or
internal security invoked to justify the prolongation of border control is specific enough and
corresponds to commensurate exceptional national measures, in particular a state of
emergency. In order to ensure the extraordinary nature of such further prolongation, a specific
possibility to go beyond the general deadlines in the Schengen Borders Code would require an
opinion by the Commission followed by a recommendation of the Council setting where
appropriate, the conditions for cooperation between the Member States concerned and which
would constitute a prerequisite for any prolongation. The recommendation could concern
periods of up to six months, and could be prolonged no more than three times for up to six
months each time, under the same procedure.
•

Choice of the instrument

The proposal concerns the amendment of a Regulation. As the proposal complements the
existing provisions of Title III, Chapter II concerning the temporary reintroduction of border
control at internal borders of this Regulation, no other instrument than a Regulation would be
appropriate.
3.

RESULTS
OF
EX-POST
EVALUATIONS,
CONSULTATIONS AND IMPACT ASSESSMENTS

•

Impact assessment

STAKEHOLDER

The proposed amendment allows for some controlled flexibility within the existing rules,
without altering the logic of the exceptional reintroduction of border control at internal
borders. This justifies a simplified analysis of the available options. There is therefore no need
for a fully-fledged impact assessment.

EN

7

EN

•

Fundamental rights

The proposed amendment respects the fundamental rights and principles set out in the Charter
of Fundamental Rights of the European Union, in particular the freedom of movement and
residence (Article 45). The safeguards of Article 3a, Article 4 and Article 7 of the Schengen
Borders Code continue to apply.
4.

BUDGETARY IMPLICATIONS

The proposed amendment has no implications for the EU budget.
5.

OTHER ELEMENTS

•

Detailed explanation of the specific provisions of the proposal

Article 25 is modified as follows:


The maximum deadline for temporary reintroduction of border control in case of
foreseeable events posing a serious threat to public policy or internal security, as set
out in paragraph 4 first sentence of this provision is prolonged from 6 months to 1
year. In line with that, in order to make the length of renewable periods under this
provision more proportionate to the overall maximum duration of border controls,
paragraphs 1 and 3 are also modified and provide for the extension of possible
renewable periods from 30 days to 6 months.



The purpose of this modification is to take into account the persistent serious threats
to public policy or internal security (such as cross-border terrorist threats or
secondary movements of irregular migrants that justify temporary reintroduction of
internal border control), which, as demonstrated over the last few years, may require
more time to deal with.



Paragraph 2 is amended in order to insert the reference to the new Article 27a.



An extraordinary possibility of prolonging border control at internal borders beyond
the maximum deadline is added in paragraph 4. Accordingly, where a serious threat
to public policy or internal security persists beyond one year, the border controls can
be exceptionally prolonged for renewable periods of up to six months, and for a
maximum period of two years, subject to the conditions and following the procedure
set out in a new Article 27a.



The purpose of this modification is to make the updated rules more resistant to the
new challenges.

Article 27 is modified as follows:


EN

In paragraph 1 which is defining the elements of the intended reintroduction of
border control (which, based on Article 25(3), are also applicable to prolongations), a
new point aa) is added introducing a new obligation for the Member States to prepare
and share a risk assessment. Such risk assessment should assess the expected length
of the threat and the affected border sections and demonstrate that border controls are
a last resort measure. It should also report in detail on the coordination with the
neighbouring Member States concerned by such temporary border control at internal
borders. In order to ensure the quality of this data, the Commission is required to
involve the relevant Agency, depending on the threat underpinning the intended
reintroduction or prolongation of border control (i.e. either the European Border and
Coast Guard Agency or Europol).

8

EN

The purpose of adding this new element is to underline the last resort character of
border controls as a measure to address serious threats to public policy or internal
security, which should be used only if other measures are considered not sufficient to
attain the same results.
This objective is reinforced by the specific obligation imposed on the Member States
going beyond the six months period of border controls, to retrospectively
demonstrate that the reintroduced border control contributed to addressing the
identified threat.
The amended provision also underlines the need of coordination with the
neighbouring Member States affected by the intended border control.
In this context, in point e) wording is added to clarify that the coordination with the
neighbouring Member States concerned should take place before the decision on
reintroduction or prolongation of border controls at internal borders.
Furthermore, the last sentence of this paragraph is modified to highlight that the
cooperation with the neighbouring Member States will be subject to the particular
attention from the Commission, which may enquire more on that.


In view of the specific procedure of prolonging border control beyond one year, the
circumstances under which the Commission is required to issue an opinion, as
specified in paragraph 4, are modified accordingly. Following this modification, the
Commission or any Member State may issue an opinion but in case of concerns
related to the necessity or proportionality of the intended border controls or when
border control at internal borders is carried out for more than six months, the
Commission is obliged to issue an opinion. This obligation is reinforced and updated
to take into account the new obligation related to preparing the risk assessment and
the role of the Agencies in assessing it.



Paragraph 5 which is setting out the details of the consultation procedure between the
Commission and the Member States, is also updated to reflect the involvement of the
Agencies. Accordingly, the Agencies are expected to participate in this process. The
other modifications reflect changes in previous paragraphs giving more visibility to
the check of necessity and proportionality of the intended border controls. Finally,
the proposed modifications aim at ensuring that the temporary reintroduction or
prolongation of border control at internal borders is accompanied in practice by
coordination measures between the Member States concerned by such controls.

As mentioned already above, a new Article 27a is added with a view to determining the
conditions and procedure to be followed in case of a serious threat to public policy or internal
security which exceeds one year.


EN

Paragraph 1 explains that border controls can be exceptionally prolonged beyond one
year where a serious threat to internal security or public policy is sufficiently specific
and persists beyond one year. This provision should be read in the light of Recital 8
which gives more guidance how the specificity of the threat can be demonstrated.
Thus, also taking into account the criteria for the temporary reintroduction of border
control as set out in Article 26, border controls could be exceptionally prolonged
beyond one year to support the exceptional measures taken at national level to
address the persisting serious threat to public policy or internal security (such as the
state of emergency).

9

EN



Paragraph 2 refers to procedural provisions of Article 27 which should continue to
apply (conditions related to the content of a notification, rules on sharing information
with the European Parliament and the Council, the right to classify some
information).



Paragraph 3 and 4 set up the procedure to be followed. Accordingly, such
extraordinary prolongation can be recommended by the Council, taking into account
the opinion of the Commission (which is compulsory, in view of the modification in
Article 27(4) as described above, and as reflected in paragraph 3 of Article 27a).
The prolongation can be recommended three times, for periods of up to six months
each time, following the same procedure. In view of the fact that the need of further
prolongation of border controls at internal borders beyond one year is likely to be
motivated by grounds which touch on national executive and enforcement powers,
and should be corroborated by commensurate exceptional national measures, it is
proposed that the recommendation of the Council should not depend on a proposal of
the Commission which, given these circumstances, would risk relying on very limited
information. The opinion of the Commission should however be duly taken into
account by the Council.
In line with the previous provisions requiring more involvement of the neighbouring
Member States, it is also proposed that the Council in its recommendation determines,
where appropriate, the conditions of cooperation between the Member States
concerned.

Article 2 of the Regulation contains standard conditions on entry into force and scope of
application.

EN

10

EN

2017/0245 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary
reintroduction of border control at internal borders

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular point
(e) of Article 77(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)

In an area where persons may move freely, the reintroduction of border control at
internal borders should remain an exception. The reintroduction of internal border
control should be decided only as a measure of last resort, for a limited period of time
and to the extent that controls are necessary and proportionate to the identified serious
threats to public policy or internal security.

(2)

The identified serious threats can be addressed by different measures, depending on
their nature and scale. The Member States have at their disposal also police powers, as
referred to in Article 23 of Regulation (EU) 2016/399 of the European Parliament and
of the Council of 9 March 2016 on a Union Code on the rules governing the
movement of persons across borders (Schengen Borders Code)8, which, subject to
some conditions, can be used in the border areas. The Commission Recommendation
on proportionate police checks and police cooperation in the Schengen area9 provides
guidelines to the Member States to that end.

(3)

In accordance with the provisions of Title III, Chapter II of the Schengen Borders
Code, internal border control can be temporarily reintroduced as a last resort measure
in case of a serious threat to public policy or internal security for a limited period of up
to six months - for foreseeable events (Article 25), and for a limited period of up to
two months - for cases requiring immediate action (Article 28). These time frames
proved to be sufficient to tackle the serious threats related to the most frequent
foreseeable events such as international sport or high level political events.

(4)

However, experience has shown that certain serious threats to public policy or internal
security, such as cross-border terrorist threats or specific cases of secondary
movements of irregular migrants within the Union that justified the reintroduction of
border controls, may persist well beyond the above periods. It is therefore needed and
justified to adjust the time limits applicable to the temporary reintroduction of border

8

OJ L 77, 23.3.2016, p.1.
C(2017) 3349 final of 12.05.2017.

9

EN

11

EN

control to the current needs, while ensuring that this measure is not abused and
remains an exception, to be used only as a last resort. To that end, the general deadline
applicable under Article 25 of the Schengen Borders Code should be extended to one
year.

EN

(5)

In order to guarantee that these internal border controls remain an exception, Member
States should submit a risk assessment concerning the intended reintroduction of
border control or prolongation thereof. The risk assessment should, in particular,
assess for how long the identified threat is expected to persist and which sections of
the internal borders are affected, demonstrate that the prolongation of border controls
is a last resort measure and explain how border control would help in addressing the
identified threat. In case of internal border control going beyond six months, the risk
assessment should also demonstrate retrospectively the efficiency of the reintroduced
border control in addressing the identified threat and explain in detail how each
neighbouring Member State affected by such prolongation was consulted and involved
in determining the least burdensome operational arrangements.

(6)

The quality of the risk assessment submitted by the Member State will be very
important for the assessment of the necessity and proportionality of the intended
reintroduction or prolongation of border control. The European Border and Coast
Guard Agency and Europol should be involved in that assessment.

(7)

The power of the Commission to issue an opinion under Article 27(4) of the Schengen
Borders Code should be modified to reflect the new obligations on the Member States
related to the risk assessment, including the cooperation with Member States
concerned. When border control at internal borders is carried out for more than six
months, the Commission should be obliged to issue an opinion. Also the consultation
procedure as provided for in Article 27(5) of the Schengen Borders Code should be
modified in order to reflect the role of the Agencies (European Border and Coast
Guard Agency and Europol) and focus on the practical implementation of different
aspects of cooperation between the Member States, including the coordination, where
appropriate, of different measures on both sides of the border.

(8)

In order to make the revised rules better adapted to the challenges related to persistent
serious threats to public policy or internal security, a specific possibility should be
provided to prolong internal border controls beyond one year. Such prolongation
should accompany commensurate exceptional national measures also taken within the
territory to address the threat, such as a state of emergency. In any case, such a
possibility should not lead to the further prolongation of temporary internal border
controls beyond two years.

(9)

The reference to Article 29 in Article 25(4) should be modified with a view of
clarifying the relation between the time periods applicable under Article 29 and Article
25 of the Schengen Borders Code.

(10)

The possibility to carry out temporary internal border controls in response to a specific
threat to public policy or internal security which persists beyond a year should be
subject to a specific procedure.

(11)

To that end, the Commission should issue an opinion on the necessity and
proportionality of such prolongation and, where appropriate, on the cooperation with
the neighbouring Member States.

(12)

In view of the nature of such measures, which touch on national executive and
enforcement powers regarding serious threats to public policy or internal security,

12

EN

implementing powers to adopt recommendations under this specific procedure should
exceptionally be conferred on the Council.
(13)

The Council, taking account of the Commission's opinion, may recommend such
extraordinary further prolongation and where appropriate determine the conditions for
cooperation between the Member States concerned, with a view to ensuring that it is
an exceptional measure, in place only for as long as necessary and justified, and
consistent with the measures also taken at the national level within the territory to
address the same specific threat to public policy or internal security. The Council
recommendation should be a prerequisite for any further prolongation beyond the
period of one year and hence be of the same nature as the one already provided for in
Article 29.

(14)

Since the objective of this Regulation, namely allowing the prolongation in
exceptional cases of reintroduced border controls at specific section(s) of the internal
borders for the time period necessary for a Member State to adequately respond to a
persistent threat of a cross-border nature, is to complement the current rules on
temporary reintroduction of border controls at internal borders, it cannot be achieved
by Member States acting alone; an amendment of the common rules established at
Union level is necessary. Thus, the Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary in order to achieve those objectives.

(15)

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark,
as annexed to the Treaty on European Union and to the Treaty on the Functioning of
the European Union, Denmark is not taking part in the adoption of this Regulation and
is not bound by it or subject to its application. Given that this Regulation builds upon
the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol,
decide within a period of six months after the Council has decided on this Regulation
whether it will implement it in its national law.

(16)

This Regulation constitutes a development of the provisions of the Schengen acquis, in
which the United Kingdom does not take part, in accordance with Council Decision
2000/365/EC10; the United Kingdom is therefore not taking part in the adoption of this
Regulation and is not bound by it or subject to its application.

(17)

This Regulation constitutes a development of the provisions of the Schengen acquis, in
which Ireland does not take part, in accordance with Council Decision 2002/192/EC11;
Ireland is therefore not taking part in the adoption of this Regulation and is not bound
by it or subject to its application.

(18)

As regards Iceland and Norway, this Regulation constitutes a development of the
provisions of the Schengen acquis within the meaning of the Agreement concluded by
the Council of the European Union and the Republic of Iceland and the Kingdom of
Norway concerning the latter's association with the implementation, application and

10

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great
Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131,
1.6.2000, p. 43).
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of
the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).

11

EN

13

EN

development of the Schengen acquis12, which fall within the area referred to in point A
of Article 1 of Council Decision 1999/437/EC.13
(19)

As regards Switzerland, this Regulation constitutes a development of the provisions of
the Schengen acquis within the meaning of the Agreement between the European
Union, the European Community and the Swiss Confederation on the Swiss
Confederation's association with the implementation, application and development of
the Schengen acquis14 which fall within the area referred to in Article 1, point A of
Decision 1999/437/EC15 read in conjunction with Article 3 of Council Decision
2008/146/EC.16

(20)

As regards Liechtenstein, this Regulation constitutes a development of the provisions
of the Schengen acquis within the meaning of the Protocol between the European
Union, the European Community, the Swiss Confederation and the Principality of
Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement
between the European Union, the European Community and the Swiss Confederation
on the Swiss Confederation’s association with the implementation, application and
development of the Schengen acquis17 which fall within the area referred to in
Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of
Council Decision 2011/350/EU18.

(21)

This Regulation respects fundamental rights and observes the principles recognised in
particular by the Charter of Fundamental Rights of the European Union.

(22)

Regulation (EU) No 2016/399 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:
Article 1
Regulation (EU) No 2016/399 is amended as follows:
(1)

12
13

14
15

16

17
18

EN

Article 25 is replaced by the following:

OJ L 176, 10.7.1999, p. 36.
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the
Agreement concluded by the Council of the European Union and the Republic of Iceland and the
Kingdom of Norway concerning the association of those two States with the implementation,
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
OJ L 53, 27.2.2008, p. 52.
Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the
Agreement concluded by the Council of the European Union and the Republic of Iceland and the
Kingdom of Norway concerning the association of those two States with the implementation,
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European
Community, of the Agreement between the European Union, the European Community and the Swiss
Confederation on the Swiss Confederation's association with the implementation, application and
development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).
OJ L 160, 18.6.2011, p. 21.
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union,
of the Protocol between the European Union, the European Community, the Swiss Confederation and
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement
between the European Union, the European Community and the Swiss Confederation on the Swiss
Confederation’s association with the implementation, application and development of the Schengen
acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160,
18.6.2011, p. 19).

14

EN

"1. Where, in the area without internal border control, there is a serious threat to
public policy or internal security in a Member State, that Member State may
exceptionally reintroduce border control at all or specific parts of its internal borders
for a limited period of up to 30 days, or for the foreseeable duration of the serious
threat if its duration exceeds 30 days, but not exceeding six months. The scope and
duration of the temporary reintroduction of border control at internal borders shall
not exceed what is strictly necessary to respond to the serious threat.
2. Border control at internal borders shall only be reintroduced as a last resort, and
in accordance with Articles 27, 27a, 28 and 29. The criteria referred to, respectively,
in Articles 26 and 30 shall be taken into account in each case where a decision on
reintroduction of border control at internal borders is considered pursuant,
respectively, to Article 27, 27a, 28 or 29.
3. If the serious threat to public policy or internal security in the Member State
concerned persists beyond the period provided for in paragraph 1 of this Article, that
Member State may prolong border control at its internal borders, taking account of
the criteria referred to in Article 26 and in accordance with Article 27, on the same
grounds as those referred to in paragraph 1 of this Article and, taking into account
any new elements, for renewable periods corresponding to the foreseeable duration of
the serious threat and not exceeding six months.
4. The total period during which border control is reintroduced at internal borders,
including any prolongation provided for under paragraph 3 of this Article, shall not
exceed one year.
In the exceptional cases referred to in Article 27a, the total period may be further
extended by a maximum length of two years in accordance with that Article.
Where there are exceptional circumstances as referred to in Article 29, the total
period may be extended by a maximum length of two years, in accordance with
paragraph 1 of that Article."
(2)

Article 27 is amended as follows:
(i) In paragraph 1, a new letter (aa) is added as follows:
"(aa) a risk assessment assessing how long the identified threat is expected to persist
and which sections of the internal borders are affected, demonstrating that the
prolongation of border control is a last resort measure and explaining how border
control would help address the identified threat. Where border control has already
been reintroduced for more than six months, the risk assessment shall also explain
how the previous reintroduction of border control has contributed to remedying the
identified threat.
The risk assessment shall also contain a detailed report of the coordination which took
place between the Member State concerned and the Member State or Member States
with which it shares internal borders at which border control has been performed.
The Commission shall share the risk assessment with the European Border and Coast
Guard Agency and Europol, as appropriate."
(ii) In paragraph 1, letter (e) is replaced as follows:
"(e) where appropriate, the measures to be taken by the other Member States as
agreed prior to the temporary reintroduction of border control at internal borders
concerned."
(iii) The last sentence in paragraph 1 is replaced by the following:

EN

15

EN

"Where necessary, the Commission may request additional information from the
Member State(s) concerned, including on the cooperation with the Member States
affected by the planned prolongation of border control at internal borders as well as
additional information needed to assess whether this is a last resort measure."
(iv) Paragraph 4 is replaced by the following:
"4. Following notification by a Member State under paragraph 1 and with a view to
consultation provided for in paragraph 5, the Commission or any other Member State
may, without prejudice to Article 72 TFEU, issue an opinion.
Where the Commission has concerns as regards the necessity or proportionality of the
planned reintroduction of border control at internal borders or where it considers that
a consultation on some aspects of the notification would be appropriate, it shall issue
an opinion to that effect.
Where border control at internal borders has already been reintroduced for six
months, the Commission shall issue an opinion.
(v) Paragraph 5 is replaced by the following:
"The information referred to in paragraph 1 and any Commission or Member State
opinion referred to in paragraph 4 shall be the subject of a consultation led by the
Commission. Where appropriate, the consultation shall include joint meetings between
the Member State planning to reintroduce border control at internal borders, the other
Member States, especially those directly affected by such measures and the relevant
Agencies. The proportionality of the intended measures, the identified threat to public
policy or internal security as well as the ways of ensuring implementation of the
mutual cooperation between the Member States shall be examined. The Member State
planning to reintroduce or prolong border control at internal borders shall take the
utmost account of the results of such consultation when carrying out border controls.

(3)

A new Article 27a is added:

Specific procedure where the serious threat to public policy or internal security exceeds
one year
"1. In exceptional cases, where the Member State is confronted with the same serious
threat to public policy or internal security beyond the period referred to in Article
25(4) first sentence, and where commensurate exceptional national measures are
also taken within the territory to address this threat, the border control as
temporarily reintroduced to respond to that threat may be further prolonged in
accordance with this Article.
2. At the latest six weeks before the expiry of the period referred to in Article 25(4)
first sentence, the Member State shall notify the other Member States and the
Commission that it seeks a further prolongation in accordance with the specific
procedure laid down in this Article. The notification shall contain the information
required in Article 27(1)(a) to (e). Article 27 paragraphs 2 and 3 shall apply.
3. The Commission shall issue an opinion.
4. The Council, taking due account of the opinion of the Commission, may
recommend that the Member State decide to further prolong border control at
internal borders for a period of up to six months. That period may be prolonged, no
more than three times, for a further period of up to six months. In its

EN

16

EN

recommendation, the Council shall at least indicate the information referred to in
Article 27(1) (a) to (e). Where appropriate, it shall determine the conditions for
cooperation between the Member States concerned."
Article 2
This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.
Done at Brussels,

For the European Parliament
The President

EN

For the Council
The President

17

EN