Explanatory Memorandum to COM(2016)711 - Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)711 - Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning ... |
|---|---|
| source | COM(2016)711  |
| date | 25-10-2016 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
On 12 May 2016, the Council adopted, on a proposal by the Commission, an Implementing Decision setting out a Recommendation for temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk. It was the first time that the safeguard procedure of Article 29 of the Schengen Borders Code was used. The combination of serious deficiencies in the management of the external border by Greece at that time and the important number of unregistered migrants present in Greece who may have sought to move irregularly to other Member States created exceptional circumstances constituting a serious threat to public policy and internal security and endangering the overall functioning of the Schengen area.
This Recommendation was addressed to five Schengen States (Austria, Germany, Denmark, Sweden and Norway) and concerned a limited number of internal border sections in these States.
The Recommendation allowed for the maintenance of targeted and proportionate controls for a period of six months, namely until 12 November 2016.
Under Article 29 of the Schengen Borders Code, this period can be prolonged in accordance with the conditions and procedure set out in the same Article.
Following the Council Recommendation of 12 May, the five Schengen States concerned notified the Commission that they would carry out the recommended temporary internal border control.
In its report of 28 September 2016, which built on information received from the Schengen States concerned, as foreseen by the Recommendation, the Commission found that the border controls have remained within the limits of the Recommendation: controls were limited to the identified migratory routes and threats, they were targeted and limited in scope, frequency, location and time, to what was strictly necessary to address the threat identified, and, while a certain economic impact could not be excluded, they affected as little as possible the crossing of the internal borders by the general public. Furthermore, based on the information at its disposal at that time, the Commission concluded that it saw no need for proposing amendments to the Recommendation.
On 18 and 21 October 2016, the Schengen States concerned reported for the second time to the Commission on the implementation of the Council Recommendation. The information provided follows a trend similar to the data provided for the first report (reduction in the number of persons to whom entry is refused, as well as in the number of asylum applications received) and thus shows a progressive stabilisation of the situation. On 20 October the five Schengen States wrote to the Commission stressing the need for allowing the continuation of the temporary border controls. Slovenia wrote to the Commission as well on 6 October to express concern about the possible continuation of border controls at the Austrian-Slovenian border.
The triggering of Article 29 of the Schengen Borders Code and the adoption of a coordinated approach at EU level to temporary border controls were among the initiatives envisaged by the Back to Schengen Roadmap 1 and which aimed at creating conditions for lifting all internal border controls and returning to a normally functioning Schengen area by the end of 2016.
Despite the sharp 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 (about 60 000) stranded in Greece who may reasonably be expected to seek to move irregularly to other Member States.
In addition, the total number of asylum applications received by the Schengen States concerned by the Recommendation remains a relevant factor, even if it is not comparable with the number of applications received at the same moment last year. The large numbers of arrivals of irregular migrants and asylum seekers in the European Union since autumn 2015 have posed substantial challenges to all EU Member States which must be taken into account. These challenges related to ensuring proper housing and access to education and health systems to those who have arrived since last year. Moreover, the processing of the remaining backlog and further arrivals and requests for protection put a continuous strain on the functioning of the administrations of these States.
Furthermore, other actions foreseen by the Back to Schengen Roadmap, despite significant progress, still need time to be fully implemented and the corresponding results confirmed.
In this regard, the European Border and Coast Guard has been adopted and entered into force within record time. However the rapid reaction pools (human resources and technical equipment) and the rapid return pools need to be established and operational by, respectively, 7 December 2016 and 7 January 2017. The first vulnerability assessments should be concluded in the first three months of 2017.
The implementation of EU-Turkey Statement continues to deliver results. Nevertheless on average 107 persons continue arriving daily at the Greek islands. It is important to continue to ensure that the Statement functions on a sustained basis. Moreover, there remains an on-going need for the cooperation agreed upon in the Statement of the Western Balkans Route Leaders meeting, as evidenced by the continuing number of arrivals in Serbia.
The exceptional circumstances that constitute a serious threat to public policy and internal security and put at the risk the functioning of the whole Schengen area thus persist.
In light of the facts exposed above, it appears that the conditions which the Roadmap 'Back to Schengen' aimed at creating in order to allow a lifting of all internal border controls and a return to a normally functioning Schengen area are not fully present yet. There have nevertheless been steady and important achievements on the road back to a fully functioning Schengen area. However, at this stage, the situation in Greece and along the Western Balkans route remains fragile and there is an important pressure in the Member States most affected by the secondary movements of irregular migrants coming from Greece. The full implementation of the European Border and Coast Guard, which would further strengthen the protection of the EU external borders, will be completed by January 2017. The further implementation of the EU-Turkey Statement will help in further diminishing the number of arrivals in the EU and provide a space for the national systems to further process and absorb the backlog of asylum applications and solidify their reception capacities.
The full application of the existing Dublin rules must be progressively restored, with the full participation of Greece, in line with the Commission's recommendations 2 , whilst improving these rules for the future based on solidarity and responsibility. In addition, the emergency relocation schemes already in place since September 2015 should continue to deliver concrete results in terms of numbers of relocated persons. Finally, returns of persons not having the right to stay in the European Union must be further stepped up.
It is therefore justified to allow the Member States concerned to prolong the current internal border controls as an exceptional measure for a further proportionate period. Based on the factual indicators available at this stage, the prolongation should not exceed three months.
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, given the progressive stabilisation of the situation, border checks should only be adopted as a measure of last resort when other measures, less restrictive of cross-border traffic, such as police checks consistent with Article 23 of the Schengen Borders Code, cannot sufficiently address the threats identified. Accordingly, the Member States that decide to maintain internal border control pursuant to the present Recommendation should, before opting for continuation, examine all available alternative measures to border controls. The Member States concerned should inform of the outcome of this examination in their notification on the maintenance of internal border controls to the other Member States, the European Parliament and the Commission.
As stated in the European Council conclusions on migration of 20 October 2016, the process of getting 'back to Schengen' entails adjusting the temporary internal border controls to reflect the current needs. Internal border control should be carried out only on the basis of risk analysis and intelligence, and 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. The Member State that carries out internal border control pursuant to the present Recommendation should review weekly the necessity, frequency, location and time of controls, adjust the controls to the level of the threat addressed, and phase them out wherever appropriate. The Member State that carries out internal border control pursuant to the present Recommendation should also regularly consult with the relevant Member State(s) with a view to ensure that internal border controls are only carried out at those parts of the internal border where it is considered necessary and proportionate in accordance with the Schengen Borders Code.
A more detailed reporting obligation should also be introduced. After each month of implementation of the present Recommendation, the Member States concerned should report to the Commission on the outcome of the controls carried out and on the assessment concerning the continued necessity of such controls, when applicable. This report should at least 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 the Recommendation and the situation on the ground.
• Consistency with existing policy provisions in the policy area
This Recommendation serves to implement the existing provisions in the policy area.
• Consistency with other Union policies
This recommendation has links with the Union's internal market and migration and asylum policy.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Article 29 of Regulation (EU) No 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).
• Subsidiarity (for non-exclusive competence)
Article 29 of Regulation (EU) No 2016/399 specifies that the Council shall adopt a recommendation for temporary internal border control on the basis of a Commission proposal.
Action at Union level is required where the overall functioning of the area without internal border controls is put at risk.
• Proportionality
The present proposal does not go beyond what is necessary to achieve the objective pursued.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
n.a.
• Stakeholder consultations
Given the urgency of the proposal, a stakeholder consultation was not feasible.
• Collection and use of expertise
n.a.
• Impact assessment
In view of the limited time frame envisaged and considering the data submitted by the Member States concerned and those available concerning the situation in Greece, a fully-fledged impact assessment was not prepared.
• Regulatory fitness and simplification
n.a.
• Fundamental rights
The protection of fundamental rights was taken into account during the drafting of the proposal.
4. BUDGETARY IMPLICATIONS
The proposed measure has no implications for the EU budget.