Explanatory Memorandum to COM(2011)560 - Amendment of Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)560 - Amendment of Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border ... |
|---|---|
| source | COM(2011)560  |
| date | 16-09-2011 |
Schengen governance – strengthening the area without internal border control
As regards the context and rationale for the amendments contained in the present proposal, and for a detailed explanation of how they are intended to function in practice, reference is made to the Commission Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions entitled ' Schengen governance – strengthening the area without internal border control' , which is adopted together with this proposal.
Legislative changes
In order to provide for the necessary legal framework to respond to the request of the European Council of 23-24 June to provide for a mechanism to respond to truly critical situations, the Schengen Borders Code established by Regulation (EC) No 562/2006 which lays down, on the one hand, the rules on border control at the external borders and, on the other hand, provides for the abolition of border control at internal borders and the possibility for its reintroduction in limited cases, needs to be amended.
Since the free movement of persons within the area without internal borders is a key Union achievement, the benefits of which are enjoyed by all the persons living in this area, it should require a decision to be taken at the Union level if this free movement is liable to be affected by a unilateral and sometimes opaque national decision.
Therefore, as a general rule, the reintroduction of controls at internal borders should be based on a decision proposed and adopted by the Commission as an implementing act following the positions expressed by Member States in the examination procedure laid down by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers i. The decision shall specify where border control at internal borders can exceptionally be reintroduced and be based on renewable periods of 30 days, with a maximum of six months. Only in cases where the reintroduction of border control at internal borders results from an adverse finding under the Schengen evaluation mechanism on account of a Member State's persistent failure to adequately protect its section of the external border can this period be extended.
Nevertheless, for unforeseeable events, Member States retain the possibility to unilaterally reintroduce border control at internal borders, if immediate action is needed. Such a decision enters into force immediately and it is notified to the Commission, the European Parliament and the other Member States. The reintroduction of border control at internal borders in such circumstances is, however, limited to five days. In such a case, the Commission may consult all Member States in order to assess the appropriateness of the measure taken. Such a consultation does not suspend the decision taken by the Member State. If need be, the reintroduction of border control at internal borders can be prolonged, but in that case needs to be based on a Commission decision taken as implementing act via the urgency procedure laid down in Article 8 of the above mentioned Regulation No 182/2011.
A coordinated, EU-based response would allow all European interests to be taken into account. Such a response would address situations where a Member State faces a serious short-term, largely localised, threat to public policy or internal security, as well as situations with wider and longer-term implications. In both instances, a coordinated European response is warranted, as it is inherent in any decision to reintroduce internal controls at internal borders – even for a limited period of time and within a limited geographic area – that the human and economic implications will be felt beyond the Member State resorting to such measures. The case for such a coordinated European approach is all the more compelling where a section of the external border comes under unexpected and heavy pressure, or where a Member State has been persistently failing to control its section of the external border, and where the circumstances would be such as to constitute a serious threat to public policy or to internal security at the Union or national level. Any decision on the reintroduction of border control at internal borders has a direct impact on all travellers and on the common interests of all Member States.
Border control at internal borders should only be reintroduced as a last resort in these circumstances, and only until other measures have been taken to stabilise the situation at the relevant external border section either at the European level, in a spirit of solidarity, and/or at national level, to ensure better compliance with the common rules.
Contents
In its Communication on migration i the Commission suggested the possibility of the introduction of a mechanism allowing for a decision at the European level defining which Member States would exceptionally reintroduce border control at internal borders and for how long. The Communication contained ideas regarding the possibility to provide for a mechanism for responding to exceptional circumstances, including by a possible coordinated EU-based temporary reintroduction of border control at internal borders as a measure of last resort.
These ideas were welcomed by the Justice and Home Affairs Council on 12 May 2011 and by the European Council in its meeting on 23-24 June 2011 where it called for a mechanism to be 'introduced in order to respond to exceptional circumstances putting the overall functioning of the Schengen cooperation at risk, without jeopardising the principle of free movement of persons.'
Article 77 i and i of the Treaty on the Functioning of the European Union is the legal basis for the proposal.
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 (internal borders) and (2)(a) (external borders) respectively.
The proposed amendment has no implications for the EU budget.