Explanatory Memorandum to COM(2011)118 - Amendment of the Schengen Borders Code and of the Convention implementing the Schengen Agreement - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)118 - Amendment of the Schengen Borders Code and of the Convention implementing the Schengen Agreement. |
|---|---|
| source | COM(2011)118  |
| date | 10-03-2011 |
This proposal contains a number of amendments to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). These are the result of the experience gained during the first years of its application. The proposal also contains some closely related modifications to the Convention implementing the Schengen Agreement of 14 June 1985.
On 13 October 2006, Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) entered into force.
After four years of practical application, the need for a number of limited technical amendments has emerged. The main sources for these amendments are:
- practical experiences of the Member States and the Commission in the application of the Schengen Borders Code, including the results of Schengen evaluations and the reports and requests submitted by Member States;
- the Commission report of September 2009 on the operation of the provisions on stamping of the travel documents of third-country nationals in accordance with Articles 10 and 11 of the Schengen Borders Code (COM(2009) 489);
- the Commission report of 13 October 2010 on the application of Title III (Internal Borders) of the Schengen Borders Code (COM(2010) 554);
- consistency considerations linked to other recently adopted legislation, in particular the Visa Code (Regulation (EC) No 810/2009 of 13 July 2009) and the Return Directive (Directive 2008/115/EC of 16 December 2008).
This proposal contains amendments that improve clarity and narrow the scope for divergent interpretations of the existing text as well as amendments responding to practical problems that have arisen during the first years of the Schengen Borders Code. Furthermore it provides for an explicit legal framework for bilateral agreements related to joint border checks on road traffic
New policy initiatives, such as the creation of an EU Entry/Exit System and an EU Registered Traveller Programme, will be the subject of specific proposals to be discussed separately.
Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement of 14 June 1985.
The proposed changes were the subject of an exchange of views with Member State experts at the meeting of the Immigration and Asylum Group on 16 March 2010.
On 7 May 2010, a special expert meeting allowed for an in-depth exchange of views on the proposed amendments. The Member State experts broadly supported the substance of the proposed changes as well as the approach of proposing technical amendments to make a limited number of practical and technical improvements to the Schengen Borders Code. Several experts emphasised the pressing practical need to address some of the issues raised in this proposal in a pragmatic way and expressed the hope that the amendments could be adopted rapidly.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- Grounds for and objectives of the proposal
- General context
- Existing provisions
- 2. CONSULTATION OF INTERESTED PARTIES
- Summary
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instrument
- 5. ADDITIONAL INFORMATION
- Succinct overview of the proposed amendments
- Horizontal changes
- Article 2, Definitions
- Article 4, Crossing of external borders
- Article 5, Entry conditions for third-country nationals
- Article 7, Border checks on persons
- Article 9, Separate lanes and information on signs
- Article 10, Stamping of the travel documents of third-country nationals
- Article 11, Presumption as regards fulfilment of conditions for duration of stay
- Article 12, Border surveillance
- Article 13, Refusal of entry
- Article 15, Implementation of controls
- Article 18, Specific rules for the various types of borders and the various means of transport used for crossing external borders
- Article 19, Specific rules for checks on certain categories of persons
- Article 21, Checks within the territory
- Article 32, Amendments to the Annexes
- Article 33, Exercise of the delegation
- Article 34, Notification
- Article 37, Notification of information by the Member States
- Annex III
- Annex IV
- Annex VI
- Annex VII
- Annex VIII
The main proposed amendments concern the following issues:
- Clear definition of the method for calculating ‘stays not exceeding three months per six-month period’ (Article 5): following the judgment delivered by the ECJ on 3 October 2006 in Case C-241/05, Bot , (ECR 2006 p. I-09627) and the adoption of a related parallel provision in Article 2(2)(a) of the Visa Code, clarified and authentic legislative guidance on this issue is needed for the Schengen Borders Code.
- Clarification concerning the required period of validity of travel documents of non-visa holders (Article 5), in response to practical needs and in order to align the text with Article 12 of the Visa Code.
- Possibility to create separate lanes for visa-free travellers (Article 9) in order to provide additional flexibility and speed up border control in accordance with practical needs.
- Improved training of border guards in order to detect situations of particular vulnerability involving unaccompanied minors and victims of trafficking (Article 15); the need to pay specific attention to training for detecting such situations was recently confirmed by the Commission’s Action Plan on Unaccompanied Minors (2010 – 2014), COM(2010) 213 final of 6.5.2010.
- Possibility to provide for derogations related to the entry and exit of members of rescue services, police and fire brigades acting in emergency situations (Article 19).
- An explicit legal framework for joint border crossings (Annex VI): in order to enable bilateral agreements to be concluded between Member States and neighbouring third countries on cooperation in border control with joint border crossing points, Annex VI of the Schengen Borders Code needs to be amended to expressly permit bilateral agreements for joint border checks on road traffic and to provide a legal framework on certain key issues, such as the situation of persons requesting international protection.
Article 77 i as well as Article 77 i of the Treaty on the Functioning of the European Union.
This proposal amends Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) which was based on the equivalent provisions of the Treaty establishing the European Community, i.e. Articles 62 i and (2)(a). It also amends Articles 21 and 22 of the Convention implementing the Schengen Agreement of 14 June 1985, which were determined by Decision 1999/436/EC to be based on Article 62 i EC, as well as Article 136 of this Convention, which was determined to be based on Article 62 i EC.
Article 77(1)(a) and (b) empowers the Union to develop a policy with a view to ‘ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders’ and ‘carrying out checks on persons and efficient monitoring of the crossing of external borders’.
The current proposal is within the limits set by these provisions. The objective of this proposal is to further develop and technically improve the measures of the Schengen Borders Code concerning the checks to which persons crossing external borders are subject and the absence of controls on persons when crossing internal borders. It cannot be sufficiently achieved by the Member States acting alone, because an amendment to an existing Union Act (the Schengen Borders Code) can only be achieved by the Union.
Article 5 i of the Treaty on European Union states that the content and form of Union action must not exceed what is necessary to achieve the objectives of the Treaties. The form chosen for this action must enable the proposal to achieve its objective and be implemented as effectively as possible.
The creation of the Schengen Borders Code in 2006 had to be in the form of a regulation, in order to ensure that it is applied in the same way in all the Member States that apply the Schengen acquis . The proposed initiative — amendment of the Schengen Borders Code — constitutes an amendment to an existing regulation and can only be achieved by means of a regulation. As to the content, this initiative is limited to improvements of the existing regulation and based on the policy orientations contained therein. The proposal therefore complies with the proportionality principle.
Proposed instrument: Regulation.
The proposed amendment has no implications for the EU budget.
Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries
The legal basis for this proposal is to be found in Title V of Part Three of the Treaty on the Functioning of the European Union, with the result that the system of ‘variable geometry’, provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and the Schengen protocol applies. The proposal builds on the Schengen acquis . The consequences for the various protocols therefore have to be considered with regard to Denmark, Ireland and the United Kingdom; Iceland and Norway; and Switzerland and Liechtenstein. The detailed situation of each of these states is described in recitals 7-12 of this proposal.
- Article 1 - Amendments to the Schengen Borders Code :
- Throughout the text, a certain number of changes resulting from the entry into force of the Lisbon Treaty are proposed (‘EU’ instead of ‘EC’; ‘European Union’ instead of ‘European Community’; updated references to Treaty provisions).
- Point 1: Amendment resulting from the changes proposed in points 4 and 4a.
- Point 4: Clarification, highlighting that Article 2 point 4 relates to ferry connections between Member States only .
- Point 4(a): The new definition will allow internal cargo operators to benefit from the absence of internal border controls in the same way as internal ferry operators.
- Point 15: The definition of residence permit is reshaped. In order to avoid any misunderstanding, it is made clear that visas (both long-stay and short-stay) can never be considered as ‘residence permits’ within the meaning of point 15(b). The outdated reference to ‘re-entry’ is removed. It is also clarified that national permits must be notified and published under Article 34 to be regarded as such.
In an effort to improve the overall structure and clarity of the text, the existing detailed derogations in points (a) and (b) are removed. To retain the substance of the deleted provisions, Articles 18 and 19 are amended to allow for derogations to Article 4 for various types of borders and categories of persons in general, in combination with the existing wording of Annex VI 3.2.5.–9. (pleasure boating and coastal fishing) and Annex VII 3.1 (seamen). The reference to ‘ occasional crossing’ in paragraph 2 is intended to clearly distinguish the exceptions authorised under this provision from local border traffic regimes allowing for ‘ regular crossing’ (governed by Article 35 and Regulation (EC) No 1931/2006). In addition, paragraph 2 expressly authorises bilateral agreements with neighbouring third countries in this field.
- Paragraph 1: Duration of stay : following the judgment delivered by the ECJ on 3 October 2006 in Case C-241/05, Bot , and the adoption of a related parallel provision in Article 2(2)(a) of the Visa Code, clear legislative guidance for calculating the ‘three months per six-month period’ for the Schengen Borders Code is given by aligning the wording with the Visa Code. Valid travel documents : in response to practical needs, the text is aligned with Article 12 of the Visa Code, including the possibility for border guards to allow exceptions in justified cases of emergency.
- Paragraph 4: Removal of the outdated and misleading term ‘re-entry visa’. Replacement of the reference to Regulation (EC) No 415/2003 in Article 5(4)(b) by a reference to the new Visa Code. Given that Article 46 and Annex XII of the Visa Code require statistics to be compiled on visas for each location where Member States issue visas (this definition includes border crossing points where visas are issued), the second paragraph of Article 5(4)(b) has become redundant and should be replaced with a reference to the relevant provisions of the Visa Code.
- Paragraph 5: Clarification of the existing obligation to provide information in written form.
- New paragraph 8: Since the exceptional circumstances listed in Article 4 i (requirements of a special nature and emergency situations) may also make it necessary in practice to provide for certain derogations to Article 7, this is explicitly allowed.
- Paragraph 2: The possibility of creating separate lanes for visa-free travellers is intended to provide additional flexibility and speed up border control in accordance with practical needs.
- Paragraph 2: Correction of a linguistic mistake in the EN version of the text.
- Paragraph 3: The situation of train crews on international connections is comparable to pilots or seamen as these trains follow a fixed schedule. In its ‘stamping report’ (COM(2009) 489 final) of September 2009, the Commission already announced that it would introduce an exemption from stamping for this category of persons.
- Paragraph 3: Technical adaptation resulting from the adoption of new legislation (Return Directive 2008/115/EC).
- New paragraph 4: Technical adaptation to fill a gap in the current text (proof of exit in the absence of an exit stamp).
- Modification related to the power of the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.
- Paragraph 5: Technical adaptation resulting from the adoption of new legislation (Migration Statistics Regulation 862/2007).
- Paragraph 1: Express mention is made of common core curricula for border guards developed by FRONTEX. The need to pay specific attention to training for detecting situations of particular vulnerability was recently highlighted by the Commission’s Action Plan on Unaccompanied Minors (COM(2010) 213 final of 6.5.2010).
Article 18, Specific rules for the various types of borders and the various means of transport used for crossing external borders
- Last sentence: To complement the amendments to Article 4 i, a systematically coherent basis is provided for derogations to Article 4 for all types of borders and all means of transport in Annex VI.
- New paragraph 1(g): In order to allow for derogations related to the entry and exit of members of rescue services, police and fire brigades acting in emergency situations an express legal framework is required (addition of a new category in Article 19, accompanied by related provisions in Annex VII) including the possibility to conclude bilateral agreements on this issue.
- New paragraph 1(h): A special exemption is made for offshore workers (such as workers on oil-platforms or on maritime windparks) in Annex VII, point 8, providing for rules comparable to coastal fishing (Annex VI, points 3.2.8 and 9).
- Paragraph 1, second sentence: To complement the amendments to Article 4 i, a systematically coherent basis is provided for derogations to Article 4 for all categories of persons mentioned in Annex VII.
- Point d: Many Member States do not implement Article 22 of the Schengen implementing Convention (reporting obligation for legally staying third-country nationals entering other Member States). Practical difficulties in verifying compliance with this general reporting obligation are broadly acknowledged and no convincing cost/benefit argument could be made to show that this rule has a significant impact on identifying illegally staying immigrants. The recent Commission report on the application of Title III (Internal Borders) of the Schengen Borders Code (COM(2010) 554) therefore proposed repealing Article 22 Schengen implementing Convention as well as the corresponding reference to it in Article 21(d) Schengen Borders Code. The proposed amendment does not affect the right of Member States to provide for targeted checks to fight illegal immigration in their territory within the limits set out in Article 21, points a to c.
- Modification related to the power of the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.
- The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union has to be expressly delegated to the Commission. The proposal follows standard wording suggested in the draft Common Understanding of the European Parliament, of the Council and of the European Commission setting out a working method among the institutions on the implementation of Article 290. The wording may require further modification in order to take into account the results of the ongoing inter-institutional negotiations.
- Paragraph 1: Clarification related to the amendments to Article 2(15). Given the legal effects which the Schengen Borders Code attaches to residence cards issued under Directive 2004/38/EC, this type of permits will have to be specifically highlighted as such.
- Alignment of reporting obligations, expressly obliging Member States to inform the Commission of all bilateral agreements authorised by the Schengen Borders Code.
- Adaptation resulting from the amendment of Article 9 i to allow for separate lanes for visa-free travellers.
- Paragraph 3: Technical adaptation. Given the standard size of the travel document (126 x 88 mm), visa sticker (105 x 74 mm) and entry/exit stamp (43 x 30 mm) it has become technically impossible to observe the rule that stamps should be affixed on the same page as the visa sticker without potentially affecting the legibility of the indications on the visa.
- New point 1.1.4.: To allow the conclusion of bilateral agreements between Member States and neighbouring third countries on cooperation in border control with joint border crossing points, an explicit legal framework is needed, also covering certain key issues such as the situation of persons requesting international protection. The proposed amendment allows Member States to conclude bilateral agreements (authorisation within the meaning of Article 2 i TFEU), but does not oblige them to do so.
- Points 1.2.1. and 1.2.2.: For reasons of consistency, the rules for the conclusion of bilateral agreements on border checks in rail traffic are aligned with the legal framework proposed in point 1.1.4. for road traffic. Following the proposed change to Article 37, the last sentence of point 1.2.1. becomes redundant and should be deleted. Further flexibility on the place where checks may be carried out is provided for in line with practical needs.
- Point 3.1.1-3.1.5: Technical adaptations aligning the wording with terminology used in the FAL Convention (International Maritime Organisation's Convention on Facilitation of International Maritime Traffic) and Directive 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of the Member States i, including introduction of the possibility to submit crew and passenger lists electronically; the introduction of a reference to information required by FAL Convention lists as endorsed by Directive 2002/6/EC; the possibility to submit lists via port authorities to border posts; deadlines for the transmission of lists; more specific guidance on administrative checking of the lists; and clarification on the need to check persons staying on board without disembarkation.
- Point 3.2.1: Adaptations resulting from modifications to point 3.1.
- Point 3.2.2.: Adaptation, in line with the changes proposed in point 3.1.4.
- Point 3.2.4.: In order to avoid overlap with point 3.1.2. as amended, point 3.2.4. should be deleted.
- Point 3.2.9.: The obligation to notify changes is already provided for in point 3.1.2. and does not need to be repeated in point 3.2.9.
- New point 3.2.10.(i): Clarification on the need to submit crew and passenger lists in the case of ferry connections, aligned with the provisions of the Maritime Safety Directive 98/41/EC.
- New point 3.2.11.: Clarification with regard to the regime applicable to ferries from a third country with more than one stop within the territory of the Member States, following the logic and wording of an existing parallel provision for air borders (point 2.1.2.(b) (iii)).
- Point 3.1.: Correction of an editorial mistake: most Member States have ratified the Seafarers Identity Documents Convention No C 108, while only three Member States have ratified the Seafarers Identity Documents Convention No C 185 (LT, HU, FR). Both Conventions should therefore be mentioned. Editorial improvement: ‘going ashore’ at a port implies not only entry but also the possibility to return to the ship (exit) once the stay ashore is finished.
- Deletion of the last sentence of points 3.1 and 3.2.: Point 3 deals with derogations to Article 4 and 7 only, not with derogations to Article 5. This text is thus misleading and should be deleted.
- Points 6.4. and 6.5.: A list of national contact points for consultation purposes on minors (currently established on a voluntary basis under section 3.7 and Annex 37 of the Schengen Handbook) now must be established and its use made obligatory.
- New point 7: See comment on Article 19(1)(g) above.
- New point 8: See comment on Article 19(1)(h) above.
- Adaptation resulting from modification of Article 11.
Article 2 - Amendments to the Convention implementing the Schengen Agreement:
- Repeal Article 21 i: Given the notification obligations under Article 34 Schengen Borders Code, this provision has become redundant and needs to be repealed.
- Repeal Article 22: See comments on Article 21 (d) SBC above.
- Repeal of Article 136: The rules relating to border checks have been harmonised by EU law. This affects the power of Member States to conclude treaties in this field. The conclusion of bilateral agreements between a Member State and a third country on border checks without specific permission to do so in the Schengen Borders Code would affect EU law within the meaning of Article 3 i TFEU and Article 2 i TFEU. Article 136 of the Convention implementing the Schengen Agreement is incompatible with this principle. It should therefore be repealed.