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REPORT (COM(2021)0891 – C90473/2021 – 2021/0428(COD))

On the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders

A-9-2023-0280

Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Sylvie Guillaume

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Parliament's amended version of the Commission proposal to amend Regulation (EU) 2016/399, the Schengen Borders Code, on the movement of persons across borders. It deletes the proposed rules on instrumentalisation of migrants and the amendments to the Return Directive, and adds rules on a large scale public health emergency, allowing the Commission to adopt delegated acts with temporary travel restrictions. It sets time limits for reintroducing internal border controls: three months, renewable up to 18 months, and a Union-level mechanism for a particularly serious threat affecting several Member States, for up to six months renewable up to two years. It requires Member States to assess alternative measures first, to notify Parliament, the Council and the Commission, and to submit risk assessments and reports. It adds a procedure to transfer third-country nationals apprehended in the vicinity of internal borders during joint police patrols, with exceptions and a right of appeal.

Committee position. The committee proposes to amend the Commission proposal: delete the instrumentalisation and Return Directive provisions, add public health emergency rules, set strict time limits on internal border controls, and add a transfer procedure with safeguards.

Key points

  1. Deletes the proposed recitals and definitions on instrumentalisation of migrants, and the rules allowing Member States to limit border crossing points in such situations.
  2. Adds a definition of 'large scale public health emergency' and lets the Commission adopt delegated acts with temporary travel restrictions, including entry restrictions, testing, quarantine and self-isolation.
  3. Exempts from travel restrictions Union citizens, third-country nationals with free movement rights and their family members, residents, beneficiaries of international protection and asylum seekers.
  4. Requires Member States to first assess alternative measures, such as police checks, the transfer procedure and other police cooperation, before reintroducing internal border controls.
  5. Limits reintroduction of internal border controls for foreseeable threats to three months, renewable up to a maximum of 18 months, with notification at least four weeks before.
  6. Requires a risk assessment when controls are prolonged beyond six months, covering the scale and evolution of the threat and coordination with affected Member States.
  7. Requires the Commission to issue an opinion on necessity and proportionality when controls are prolonged beyond nine months, and to organise consultations, including in the Schengen Forum.
  8. Allows a Member State to request the Commission to propose a Council implementing decision to prolong controls beyond 18 months, for three months, with up to two further requests.
  9. Creates a Union-level mechanism for a particularly serious threat affecting several Member States, authorising controls by delegated act for up to six months, renewable no more than three times, up to two years.
  10. Requires Member States to notify Parliament, the Council and the Commission of reintroductions and to submit reports when controls are lifted, and after six months and every six months thereafter.
  11. Adds a procedure to transfer third-country nationals apprehended in the vicinity of internal borders during joint police patrols, excluding minors, long-term residents, visa holders, asylum seekers and beneficiaries of international protection.
  12. Gives transferred persons a written reasoned decision and a right to an effective remedy without suspensive effect, and requires transfer within 12 hours.

Who is affected

  • Member States: must assess alternatives, notify, justify and report on internal border controls, and may transfer apprehended third-country nationals.
  • Third-country nationals: subject to transfer in the vicinity of internal borders, with exceptions and a right of appeal.
  • Travellers: subject to temporary travel restrictions during a large scale public health emergency, with exemptions.
  • The Commission: must issue opinions, organise consultations, review measures and report annually on the State of Schengen.
  • The European Parliament and the Council: must receive notifications and reports on internal border controls.

Figures and deadlines

  • Three months: initial period for reintroducing internal border controls for foreseeable threats.
  • 18 months: maximum duration of internal border controls for foreseeable threats.
  • Four weeks: minimum notice before planned reintroduction of border controls.
  • Six months: period after which a risk assessment and a report are required.
  • Nine months: period after which the Commission must issue an opinion.
  • Six months: period of a Union-level authorisation, renewable no more than three times.
  • Two years: maximum duration of internal border controls under the Union-level mechanism.
  • 12 hours: deadline to transfer a person to the neighbouring Member State.

Legal basis: Article 77(2)(b) and (e) of the Treaty on the Functioning of the European Union.