The Commission has today recommended that the Council allow Member States to maintain for a further period of three months the temporary controls currently in place at certain internal Schengen borders, namely those in Austria, Germany, Denmark, Sweden and Norway where controls are already in place pursuant to the Council Recommendation of 11 November 2016.
The Recommendation concerns the following internal borders:
- Austria at the Austrian-Hungarian and Austrian-Slovenian land borders;
- Germany at the German-Austrian land border;
- Denmark in Danish ports with ferry connections to Germany and at the Danish-German land border;
- Sweden in Swedish harbours in the Police Region South and West and at the Öresund bridge;
- Norway in Norwegian ports with ferry connections to Denmark, Germany and Sweden.
The temporary border controls should remain targeted, based on constantly updated risk analysis and intelligence, and limited in scope, frequency, location and time to what is strictly necessary to respond to the serious threat and to safeguard public policy and internal security. The Member States concerned should ensure that internal border controls are only carried out as a last resort. They should review weekly the necessity, frequency, location and time of controls, adjust the intensity of the controls to the level of the threat addressed, phasing them out wherever appropriate, and report promptly to the Commission every month.
Why is the Commission recommending the Council allows the prolongation of temporary controls at these internal borders?
As set out in the Commission's "Back to Schengen" Roadmap, the objective of the Commission is to return to a normally functioning Schengen area as soon as possible. However, the Commission considers that at this stage, the exceptional circumstances that led to the adoption of the Council Recommendation of 12 May and the subsequent prolongation of 11 November are still present.
Despite significant progress in the implementation of the Roadmap, the situation remains fragile in Greece, in the Member States most affected by the secondary movements of irregular migrants and asylum seekers coming from Greece and along the Western Balkans route.
In particular, despite the significant decrease in the number of arrivals of irregular migrants and asylum seekers in the European Union notably due to the implementation of the EU-Turkey Statement, there is still a significant number of irregular migrants and asylum seekers in Greece (between 50,000 and 60,000, of whom 16,000 are on the islands).
Furthermore, despite the steady and important progress in the fields identified by the "Back to Schengen" Roadmap, several actions still need time to be fully implemented and their results confirmed. The European Border and Coast Guard Agency, established since 6 October, is being rapidly rolled out and cooperation between the Agency and neighbouring third countries is advancing. However, further efforts and more time are needed in order to confirm the results. The continued implementation of the EU-Turkey Statement is still needed for a sustained reduction of arrivals to the EU. Finally, the full application of the existing Dublin rules in Greece will only be restored progressively as of mid-March and further efforts are needed to ensure the full participation of Greece.
As those elements point towards the persistence of exceptional circumstances, the Commission considers it justified, on a precautionary basis and only after having examined alternative measures, that the Council allows Austria, Germany, Denmark, Sweden and Norway to prolong the current internal border controls as an exceptional measure for a further proportionate and limited period under strict conditions. In particular, any such controls must be targeted and limited in scope, frequency, location and time to what is strictly necessary. Based on the factual indicators available at this stage, the prolongation should not exceed three months. The Commission will continue to work with these Member States to gradually phase out temporary internal border controls.
What will happen at the end of the three-month period if the Council allows for a further prolongation of controls?
Article 29 of the Schengen Borders Code foresees that the Council may prolong, on a proposal from the Commission, the initial period during which temporary internal border controls are authorised, no more than three times for a further period of up to six months and up to a maximum period of 2 years, if the exceptional circumstances persist.
Does the Recommendation set limits and conditions to the recommended prolongation of internal border controls in these five countries?
As set out in the Commission's Recommendation, the Schengen States currently carrying out temporary internal border control pursuant to the Council Recommendation of 12 May 2016 should be permitted to continue doing so. However, in view of the progressive stabilisation of the situation, border checks should only be adopted as a last resort when other, less restrictive measures, such as the exercise of police powers under Article 23 of the Schengen Borders Code, cannot sufficiently address the threats identified. With a view to returning to a normal functioning of Schengen and gradually phasing out the current temporary internal border controls, the Commission encourages Member States to make use of this latter possibility.
The requirements under the Recommendation of 11 November 2016 concerning the weekly review by the Member States concerned of the necessity, frequency, location and time of controls, adjustment of the controls to the level of the threat addressed, and phasing them out wherever appropriate, remain in place for this Recommendation. Before opting for a continuation of border controls the Member States concerned should examine all alternative measures and inform of the outcome of this examination in their notification to other Member States, the European Parliament and the Commission on the maintenance of internal border controls.
Internal border controls should be limited in scope, frequency, location and time to what is strictly necessary to respond to the serious threat and to safeguard public policy and internal security. Member States carrying out internal border controls should regularly consult with the Member States concerned and review on a weekly basis the necessity, frequency, location and time of controls, adjust the intensity of the controls to the level of the threat addressed, and phase them out wherever appropriate.
After each month of implementation of the Recommendation, the Member States concerned should report to the Commission on the outcome of the controls carried out and on the continued necessity of such controls. This report should at minimum include the total number of persons checked, the total number of refusals of entry following the checks, the total number of return decisions issued following the checks and the total number of asylum applications received at the internal borders where the checks take place.
The Commission will closely monitor the application of this Recommendation and the situation on the ground.
The Commission will continue working with the Schengen States concerned to gradually phase out temporary internal border controls with the objective of returning to a normal functioning of the Schengen area as soon as possible.
Are the temporary controls linked only to the situation in Greece? Does this mean that there cannot be controls at borders other than the ones mentioned in this Recommendation?
The permission to prolong internal border controls for a further period of three months is only linked to the exceptional circumstances resulting from the context of the unprecedented migratory and refugee crisis which started in 2015, and the deficiencies identified in the external border management by Greece as well as the secondary movements resulting from these deficiencies.
Controls in response to migration routes not linked to Greece's control of its external border, for example from the Central Mediterranean, cannot take place on the basis of the current Recommendation.
However, all Member States, including the five Member States concerned by the present Recommendation, have the possibility for temporary reintroduction of internal border control in the event of another serious threat to public policy or internal security.
The Commission is fully aware that future migratory flows at any EU border section may in the future pose another serious threat to public policy or internal security in one or several Member States. For this reason, actions are taken at different border sections at sea and on land to take coordinated action, including through additional efforts on the Central Mediterranean route, through the Partnership Framework, and by taking additional action on the relevant sections of the external borders. The Commission also recognises that new security challenges have arisen in the past years, as demonstrated by the recent terrorist attack in Berlin. In this respect, whilst the current legal framework has been sufficient to address challenges faced until now, the Commission is reflecting on whether it is sufficient to address evolving security challenges.
Why was the Article 29 procedure triggered in the first place?
In exceptional situations, serious deficiencies in the management of the external border of the EU can put at risk the functioning of the internal area of free movement insofar as these circumstances constitute a serious threat to public policy and internal security. In these cases, the Council is empowered to recommend, on a proposal from the Commission, border controls at one or several internal borders.
In the context of the unprecedented migratory and refugee crisis which started in 2015, such deficiencies were identified in the external border management by Greece and the secondary movements resulting from these deficiencies. On 12 May 2016, the Council recommended to allow temporary border controls for six months in five Schengen countries - Austria, Germany, Denmark, Sweden and Norway – mostly affected by the flows of irregular migrants coming from Greece.
Can Schengen Member States still make use of the general provisions of the Schengen Borders Code to temporarily reintroduce internal border controls?
Article 29 of the Schengen Borders Code states that the exceptional procedure referred to under this article is without prejudice to measures that may be adopted by Member States, including the five affected Member States, in the event of a serious threat to public policy or internal security under the general ruled for the temporary reintroduction of border controls at internal borders (Articles 25 to 28 of the Schengen Borders Code), not linked to the serious deficiencies in the management of the external border.
In case of a serious threat to public policy or internal security in a Member State, that Member State may reintroduce temporary border controls at all or parts of its internal borders for a maximum of two months in cases requiring immediate action (Article 28) and a maximum of six months in case of foreseeable events (Article 25). In such cases, the Commission will see to the necessity and proportionality of the controls carried out.
Which countries currently have internal border controls in place under the Recommendation?
Temporarily reintroduced border controls in the context of the Recommendation of the Council of 11 November 2016:
- Germany (12 November 2016 – 12 February 2017) land border with Austria
- Austria (12 November 2016 – 12 February 2017) land border with Slovenia and with Hungary
- Denmark (12 November 2016 – 12 February 2017) Danish ports with ferry connections to Germany and the Danish-German land border
- Sweden (12 November 2016 – 11 February 2017) Swedish harbours in the Police Region South and West and the Öresund bridge
- Norway (12 November 2016 – 12 February 2017) Norwegian ports with ferry connections to Denmark, Germany and Sweden
For more information
Proposal for a Council implementing decision setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk
Press release: Commission proposes that the Council allows Member States to maintain temporary controls for another three months
FACTSHEET: The Schengen Rules Explained
Back to Schengen – A Roadmap
Press release: Commission reports on progress in making the new European Border and Coast Guard fully operational