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DRAFT 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

LIBE-PR-737471

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

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This is the rapporteur's draft report on the Commission proposal to amend Regulation (EU) 2016/399, the Schengen Borders Code. It proposes many amendments to the Commission's text. The draft removes the Commission's new rules on instrumentalisation of migrants and on transferring apprehended third-country nationals between member states, saying these belong in separate proposals. It shortens the periods for which member states may reintroduce internal border controls and requires the Commission to give an opinion once controls pass six months. It gives Parliament a role in Union-level decisions on travel restrictions and on internal border controls, and requires member states to notify Parliament as well as the Commission. It deletes the ground of large-scale unauthorised movements of third-country nationals as a reason for internal border controls, and deletes the new internal return procedure.

Committee position. The rapporteur proposes to amend the Commission proposal by deleting the rules on instrumentalisation, the internal transfer procedure and the ground of large-scale unauthorised movements, by shortening the periods for internal border controls, and by giving Parliament a role in Union-level decisions on travel restrictions and internal border controls.

Key points

  1. The draft adopts Parliament's first-reading position on the proposal and asks the Commission to refer the matter to Parliament again if it substantially amends its proposal.
  2. It drops Article 79(2)(c) as a legal basis, saying the additional basis is unnecessary given the deletion of certain provisions.
  3. It deletes the recitals and provisions on instrumentalisation of migrants, saying the Commission has made a separate proposal with a separate legal basis on that issue.
  4. It deletes the new Article 23a and Annex XII on transferring apprehended third-country nationals between member states, and the related amendment to the Return Directive.
  5. It deletes the ground of large-scale unauthorised movements of third-country nationals as a reason for reintroducing internal border controls.
  6. It shortens the maximum duration of internal border controls for foreseeable threats to one year, with renewals of up to three months, and requires a risk assessment after three months.
  7. It requires the Commission to issue an opinion on the necessity and proportionality of internal border controls once they reach six months in total.
  8. It allows the Council to adopt a decision authorising reintroduction of internal border controls for up to six months, renewable no more than three times, up to a maximum of two years, after consulting Parliament.
  9. It requires member states to notify the European Parliament, as well as the Commission and other member states, of any reintroduction or prolongation of internal border controls.
  10. It requires the Council to consult Parliament before adopting Union-level travel restrictions and decisions on internal border controls.
  11. It deletes the provision allowing checks of passenger data against databases for security purposes, citing a Court of Justice ruling.
  12. It requires border surveillance using technical means to comply with the Artificial Intelligence Act, and delegated acts on surveillance standards to follow that Act.

Who is affected

  • Member states: shorter maximum periods for internal border controls and new notification duties to Parliament.
  • The Council: may adopt travel restrictions and internal border control decisions only after consulting Parliament.
  • The Commission: must issue opinions on internal border controls after six months and may propose Council decisions.
  • Third-country nationals: the draft deletes the internal transfer procedure and the ground of unauthorised movements.
  • The European Parliament: gains a role in Union-level decisions on travel restrictions and internal border controls.

Figures and deadlines

  • Internal border controls for foreseeable threats: up to three months, renewable for periods of up to three months, maximum one year.
  • Commission opinion required once internal border controls reach six months in total.
  • Council decision authorising internal border controls: up to six months, renewable no more than three times, maximum two years.
  • Risk assessment required when internal border controls are prolonged beyond three months.
  • Report on internal border controls required after six months if controls are exceptionally maintained.

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