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New Schengen rules to better protect citizens' free movement

Commission Européenne - MEMO/13/536   12/06/2013

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European Commission

MEMO

Brussels, 12 June 2013

New Schengen rules to better protect citizens' free movement

The Schengen area of free movement is a unique achievement. Each year millions of European citizens freely cross our internal borders without a border control. In 2011, the Commission put forward two legislative proposals on the Schengen governance (IP/11/1036 and MEMO/11/606) to protect Schengen as an area without controls at internal borders and help preventing and removing unjustified obstacles to free movement. The new rules allow for a sound Schengen governance, based on clear and transparent European rules that will make the system more efficient. The new system will prevent Member States from unilaterally deciding to reintroduce unnecessary controls at the internal borders without any European verification. The Commission is given a central role when it comes to monitoring and evaluation and, in close cooperation with experts from the Member States, will have the competence to ensure that the Schengen rules will be respected.

How will the revised Schengen evaluation mechanism ensure a better application of the rules?

The abolition of internal border controls is accompanied by measures in the field of external borders, visa policy, the information sharing, data protection, police cooperation, and judicial cooperation in criminal matters.

European citizens can fully benefit from free movement only if the Schengen rules and regulations are applied effectively, consistently and in a transparent manner by the Member States. This application is regularly evaluated.

The new evaluation rules mean a shift from the current intergovernmental system of peer review to an EU-based approach where the central coordinating role is given to the Commission. The new system also introduces a clause providing for unannounced visits of experts, and clearer rules for the follow-up to evaluations.

In addition to these improvements, the new evaluation process also includes measures aimed to assist Member States in fulfilling the recommendations adopted as part of the evaluation process.

Although the implementation of these support measures would normally be sufficient to deal with any problem that may occur, the new system also provides for the very exceptional situation where deficiencies in the management of the external border are still not adequately addressed. The new rules therefore include the possibility for Member States to decide (based on a proposal from the Commission followed by a recommendation from the Council) on the temporary reintroduction of controls at the internal border of the evaluated Member States, for a limited period of time, enabling those shortcomings to be remedied.

The new mechanism will play a more decisive role, considering that this safeguard clause will encourage Member States to fully comply with their obligation under the Schengen rules and guidelines.

Who is concerned by the Schengen evaluation mechanism?

The new rules provide for:

  1. On the one hand, the verification that the Schengen rules are correctly applied by those Member States who are already part of the Schengen area;

  2. On the other hand, the verification that all conditions have been met by a Member State in the process of becoming a member of the Schengen area, with the exception of the Member States whose evaluations had already been completed when the new regulation enters into force.

Decisions on full Schengen membership are still taken by the Council after consultation of the European Parliament.

How will the new Schengen evaluation mechanism improve accountability and democratic controls?

Under the new system, the role of the European Parliament will be reinforced.

The Parliament will be kept informed throughout the whole process, including of evaluation programmes, Frontex' risk analysis, Member States' replies to questionnaires, evaluation reports, recommendations, action plans for remedial measures and their implementation. The Parliament must also be informed about any reintroduction of internal border controls.

The Council has given clear assurances that before any amendment to the evaluation system would be decided, it will consult with the Parliament in order to take into account, to the fullest extent possible, the views of the Parliament.

What are the current rules for reintroducing internal border controls?

Under articles 23-25 of the Schengen Borders Code, Member States have the possibility to exceptionally reintroduce border controls, where there is a serious threat to public order or internal security. For foreseeable events, a Member State shall notify the other Member States and the Commission in advance, but in cases requiring urgent action a Member State may immediately reintroduce border controls at internal borders. The reintroduction of border controls is limited to a period of 30 days, but may be repeatedly prolonged for 30 days at the time.

To date, the re-introduction of border controls at internal borders has been used both for foreseeable and unforeseeable events, mainly to enable police authorities to deal effectively with the security implications of major sporting events, political demonstrations, or high-profile political meetings. The two most recent examples are the Polish reintroduction in connection with the EURO football championships in June 2012 and the Norwegian reintroduction on the occasion of the Nobel Peace Prize ceremony in Oslo in December 2012. A unilateral re-introduction of border controls has never exceeded 30 days, and has usually been for a much shorter period of time.

The Commission proposed to shift from this current system allowing for unilateral national decisions to a coordinated European response.

In which situations could the temporary and exceptional reintroduction of internal border controls be envisaged under the new rules?

A serious threat to public policy or to internal security will remain the only ground for the reintroduction of internal border controls. This ground remains basically unchanged from the one specified in the Schengen Borders Code today and may relate to inter alia:

  1. Foreseeable events with a largely localised short-term impact (major sporting events, political demonstrations, high-profile political meetings);

  2. Urgent unforeseen, short-term events requiring immediate action (terrorist attack or other major criminal incident);

  3. A persistent serious deficiency related to the external border control (as a last resort and after having exhausted all other measures, including technical and/or financial support measures, to mitigate the adverse impact of the failure by a Member State to control its section of the external borders).

The deficiencies in border management would be identified in a report prepared as part of the evaluation mechanism and in recommendations to address the deficiencies. The Commission would first recommend the Member State concerned to take certain specific measures, such as requesting support from Frontex. However, in really exceptional cases where these measures prove ineffective in addressing the deficiencies, the Commission could propose a temporary reintroduction of internal border controls. Before taking such a serious step, the Commission would take full account of a number of factors, including the overall impact on the flow of persons within the Schengen area.

How would a decision be made under the new regime?

The new rules set out the circumstances in which the reintroduction of internal border controls could be triggered and implemented, including the circumstances in which a critical evaluation under the revised Schengen evaluation mechanism could ultimately result in a decision to temporarily re-introduce internal border controls. In addition, as a completely new feature, it lays down the criteria which a Member State needs to consider when deciding on the reintroduction of controls.

The decision making process differs depending on the case at hand:

  1. For cases related to foreseeable events, for instance sports events, political demonstrations or high-level political meetings, a Member State may, following notification to the other Member States and the Commission, decide on the reintroduction of controls. The notification would specify inter alia the reasons for the proposed reintroduction, where border controls are to be reintroduced as well as the date and duration of the planned reintroduction. The reintroduction is limited to 30 days with a possibility for prolongations, but contrary to the current possibility of an unlimited number of prolongations, the total period of reintroduction is restricted to six months.

  2. For unforeseeable events, such as terrorist attacks, Member States also retain the possibility to reintroduce border controls if immediate action is needed, with the possibility for the required notification to take place only at the same time as the reintroduction, i.e. not necessarily prior to it. In such cases, the reintroduction of border controls is limited to ten days, but with possible prolongations up to a maximum period of two months.

  3. During a Schengen evaluation it may be reported that a Member State displays persistent serious deficiencies related to its external border control putting the overall functioning of the Schengen area at risk. In such exceptional circumstances, the Commission may propose to the Council to recommend to the Member States to reintroduce control at their internal border with the Member State concerned. Such a reintroduction is limited to six months, but may also be prolonged, however only for a total period of two years.

Why is it best to provide for a coordinated process at the European level in cases of serious deficiencies putting the overall functioning of the Schengen area at risk?

For truly exceptional situations where a Member State has been persistently failing to effectively control its section of the external border, there is a need for a coordinated decision making process.

Decisions on reintroduction of internal border controls should be taken based on commonly agreed criteria, as these decisions have human and economic implications beyond the confines of the national territory.

Furthermore, such a coordinated response will increase trust among Member States by allowing all European interests to be taken into account.

Why do we need a mechanism for dealing with persistent deficiencies putting the Schengen system at risk?

The Schengen area is vital for everyone living in Europe. Travelling without passports is a reality for hundreds of thousands people every day. We need to preserve and reinforce this common achievement.

The system is currently not equipped with the necessary tools to deal with deficiencies due to weaknesses in the control of the external borders. The Union must be able to address these diverse challenges, while safeguarding the citizen’s right to free movement.

In its Communication adopted on migration adopted on 4 May 2011 (IP/11/532 and MEMO/11/273), the Commission announced its intention to look into the possibility of introducing a mechanism to handle those situations. The European Council of 23-24 June 2011 called for such a mechanism and invited the Commission to submit a proposal in September 2011.

Travelling without internal border controls within the Schengen area is a major European achievement benefiting all those living and travelling in this area. The possibility to reintroduce controls at internal borders in cases of persistent deficiencies putting the Schengen system at risk should therefore be based on a coordinated process. An EU coordinated mechanism will enable us to respond effectively and in a timely manner to exceptional challenges which risk jeopardising the overall functioning of Schengen.

What is meant by reintroducing controls as a 'last resort' measure?

Regardless of the type of situation (see above), the reintroduction of controls at internal borders should remain a truly exceptional option, to be used only in critical situations, for a limited period of time and after a coordinated decision making process based on a careful analysis of the possible threat.

It should be contemplated only if all other alternative supportive measures to restore the integrity of the Schengen area have proved ineffective. The agreed amendment of the Schengen Borders Code makes that clear.

What does the reintroduction of controls mean in practice?

A reintroduction of controls implies that Member States could carry out systematic checks and surveillance at internal borders. The nature, extent and intensity of border checks would depend on the nature of the threat the State is confronted with.

However, it must be emphasized that, even in the event of the reintroduction of internal border controls, EU citizens can in principle enter the territory of another Member State on the simple presentation of a passport or ID card. All procedural safeguards enjoyed by an EU citizen and his or her family members remain in place. Equally, third country nationals legally staying within the Schengen area will be able to continue to travel on the basis of their travel document and, where necessary, their valid visa or residence permits.

Reintroduction of border controls only means that authorities may verify whether all entry conditions are fulfilled.

How will the Commission enhance political guidance over the functioning of the Schengen area?

The Commission continues to present biannual overviews to the EU institutions on the functioning of the Schengen area. These provide the basis for a regular debate in the European Parliament and in the Council and contribute to the strengthening of political guidance and cooperation in the Schengen area.

The most recent report on the state of the Schengen area was published on 3 June 2103 (IP/13/496).

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