Explanatory Memorandum to COM(2017)40 - 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(2017)40 - Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning ... |
|---|---|
| source | COM(2017)40  |
| date | 25-01-2017 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
In 2015, a number of EU Member States reintroduced temporary border controls, following record flows of migrants arriving in the European Union and important secondary movements. This situation constituted a serious threat to public policy or internal security in several Schengen States1.
Threats were due to serious deficiencies in ensuring efficient border control at parts of the Union's external border, which put the functioning of the entire Schengen area at risk. Therefore, the Council recommended2, on a proposal from the Commission3, that the five Schengen States the most affected (Austria, Germany, Denmark, Sweden and Norway) maintain proportionate temporary border control at a limited number of their internal border sections, for a period of six months.
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 Roadmap4, which aimed at creating conditions for lifting all internal border controls and returning to a normally functioning Schengen area as soon as possible.
On 11 November 2016, the Council adopted, on a proposal by the Commission, an Implementing Decision under Article 29 of the Schengen Borders Code setting out a Recommendation for prolonging temporary internal border control in exceptional circumstances putting the overall functioning of the Schengen area at risk. It was considered that the consequences of the exceptional circumstances that led to the triggering of Article 29 still persisted.
This Recommendation was addressed to the same five Schengen States (Austria, Germany, Denmark, Sweden and Norway), concerned the same internal border sections in these States and allowed for the maintenance of targeted and proportionate controls for a further period of three months, namely until 12 February 2017. The reintroduced border control was nevertheless submitted to stricter conditions than under the Recommendation of 12 May 2016 and a detailed monthly reporting obligation for the Schengen States concerned5.
Under Articles 25 and 29 of the Schengen Borders Code, this period can be again prolonged in accordance with the conditions and procedure set out in Article 29 if the exceptional circumstances persist.
Chronologically, Germany, Austria, Slovenia, Hungary, Sweden, Norway, Denmark.
temporary internal border control in exceptional circumstances putting the overall functioning of the
Schengen area at risk (OJ L 151/8).
temporary internal border control in exceptional circumstances putting the overall functioning of the
Schengen area at risk, COM(2016)275 final of 4 May 2016.
Council of 4.3.2016, "Back to Schengen – A Roadmap", COM(2016) 120 final.
Following the Recommendation of 11 November 2016, all five Schengen States concerned notified the
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This Recommendation is without prejudice to additional possibilities available to all Member States, including the five affected Member States, under the general rules for temporary reintroduction of internal border control in the event of another serious threat to public policy or internal security, not linked to the serious deficiencies in the management of the external border. For example during the period of application of the Recommendation of 12 May 2016, France, not concerned by this Recommendation, notified the reintroduction and subsequent maintenance of border controls at its internal borders based on grounds related to foreseeable events and terrorist threats6.
In addition, as is recognised by Article 23 of the Schengen Borders Code, Member States can carry out police checks in border areas, as long as those do not have an effect equivalent to border checks. The available intelligence and increased level of threat can justify the intensification of such checks, including on key transport networks with cross-border police cooperation, which can be instrumental in responding both to uncontrolled secondary movements and terrorism. 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 possibility.
It should also be highlighted that neither carrying out police checks in border areas nor reintroduced border controls can provide full security on their own, as demonstrated by the recent terrorist attack in Berlin. Therefore the increased and effective cooperation at all levels of relevant services among Member States fighting terrorism (exchange of intelligence, police cooperation and use of EU databases) remains fundamental in ensuring full security in the Schengen area.
external borders of the Union and protecting the Schengen area have been implemented or are
being implemented7. The border control-related measures include inter alia the
and the upcoming systematic checks against relevant databases for all people crossing the
external border. The external borders of the EU are today better protected and equipped to
react to a new crisis due to the newly established European Border and Coast Guard. The
Commission will continue to closely cooperate with the European Border and Coast Guard
Agency and ensure that all obligations foreseen by the European Border and Coast Guard
Regulation are met. Those measures should lead to a much better protection of the EU
external border, which is an indispensable prerequisite to the lifting of the temporarily
reintroduced internal border controls and the restoration of a normally functioning Schengen area8.
The Commission is fully aware that future migratory flows at any EU border section may pose a 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 route9, through the
Euro 2016/Tour de France, state of emergency following the Nice attack.
Commission proposal for a Regulation of the European Parliament and of the Council on the European
Border and Coast Guard, COM (2015)671 final; Commission proposal for a Regulation of the European
Parliament and of the Council amending Regulation No 562/2006 (EC) as regards the reinforcement of
checks against relevant databases at external borders, COM(2015)670 final.
Council "Back to Schengen – A Roadmap", COM(2016)120 final.
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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 very 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 sufficiently adapted to address evolving security challenges.
The Commission is committed to continue working in order to ensure that the tools already in place are fully used as well as on the necessary new initiatives in order to further stabilise the situation, mindful of the fact that the disadvantages of prolonged internal border controls, namely the high economic costs and the obstacles to the free movement of citizens, have to be balanced against the results obtained by the internal border controls carried out so far.
Current situation
Based on the monthly reports submitted to the Commission by the Schengen States concerned and on all the information at its disposal, the Commission can conclude that the controls have remained within the conditions set by the Recommendation. The controls have been carried out only when necessary, they have remained proportionate, targeted, limited in their intensity and impeding as little as possible the crossing of the respective internal borders by the general public.
The information provided by the Schengen States in their reports confirms the trend that emerged with the reports under the Recommendation of 12 May 2016 (reduction in the number of persons to whom entry is refused, as well as in the number of asylum applications received) and thus the progressive stabilisation of the situation.
It is true that the number of arrivals of irregular migrants and asylum seekers in the European Union also continued to decrease during the period covered by the Recommendation. Yet, while the launch and operationalisation of the European Border and Coast Guard Agency and the continued implementation of the EU-Turkey Statement of 18 March 2016 represent key steps in managing the situation, an average of 81 persons continue arriving daily in the Greek islands.
Moreover, there are still a significant number of irregular migrants and asylum seekers in Greece (between 50 000 and 60 000, out of which 16 000 are on the islands). The Hotspots and camps in Greece remain overcrowded due to insufficient progress in processing, relocations and returns and, based on previous experience, the risk of secondary movement of these irregular migrants to other Member States remains. In addition, the situation in the Western Balkans remains fragile with, for instance, 7 000 migrants currently in Serbia. It follows that the overall situation still remains fragile and further efforts remain necessary in order to continue reducing the numbers. The consequences of the exceptional migratory 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.
Way forward
Despite the important progress achieved, the conditions set out in the Roadmap 'Back to Schengen' in order to allow lifting all internal border controls and returning to a normally functioning Schengen area are not entirely fulfilled.
In particular, at this stage, the number of migrants remaining in Greece may be still of concern and may justify maintaining appropriate measures. The situation along the Western Balkans route remains fragile and the Member States most affected by the secondary movements of irregular migrants coming from Greece remain exposed to the risk related to the irregular movements.
The European Border and Coast Guard Agency has entered into force in record time and is being rapidly rolled out10, including to allow to assist Greece at the Northern Greek external border as of February 2017. The cooperation between the European Border and Coast Guard Agency and third countries is also advancing: the Commission has submitted to the Council a request for a negotiating mandate for a status agreement to be concluded with two neighbouring third countries (Serbia and former Yugoslav Republic of Macedonia). This process of rolling out the European Border and Coast Guard is ongoing and needs further efforts.
Furthermore, the application of existing Dublin rules in Greece will only be progressively restored starting as of mid-March and further efforts are needed to ensure full participation of Greece in this system in line with the Commission's recommendations, irrespective of the ongoing work on improving these rules. In addition, the emergency relocation schemes already in place since September 2015 must 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.
As those elements point towards the persistence of exceptional circumstances, the Commission considers it justified to allow Austria, Germany, Denmark, Sweden and Norway 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 Commission will continue to work with these Member States to gradually phase out temporary internal border controls.
Scope of the proposal
The five Member States currently carrying out temporary internal border control pursuant to the Council Recommendation of 11 November 2016 should be permitted to continue doing so for three months under strict conditions.
However, given the progressive stabilisation of the situation and the objective of gradually phasing out temporary internal border controls, the Member States concerned should first consider whether other measures, in particular police checks near the border in a manner compatible with Article 23 of the Schengen Borders Code, can sufficiently address the threats identified11 and only introduce effective border checks at the internal borders concerned as a measure of last resort. 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. These Member States should
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See Communication on operationalisation of the European Border and Coast Guard, COM(2017) 42 The Court of Justice has ruled that the four little Roman figures (i) to (iv) in Article 23 lit.a of the Schengen Borders Code (Regulation 2016/399) are just an example, they are not a straightjacket prescribing the only possible police measures of Member States in a border area (case Adil, C-278/12 PPU, point 65). This judgement concerns national legislation or practice which is limited to border areas. Where the police powers are applicable across the territory of the Member State without distinction, the chance that their application falls foul of the ban on measures equivalent to border
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.
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. The Member States concerned should also continue regularly consulting with the relevant Member State(s) with a view to ensuring 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.
The detailed reporting obligation introduced by the Council Recommendation of 11 November 2016 will continue to apply. After each month of implementation of the present Recommendation, the Member States concerned should promptly 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. LEGALBASIS, SUBSIDIARITYAND 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
Contents
- CONSULTATIONS
- Council Implementing Decision (EU) 2016/894 of 12 May 2016 setting out a recommendation for
- Commission proposal for a Council Implementing Decision setting out a recommendation for
- Communication from the Commission to the European Parliament, the European Council and the
- Following the Recommendation of 11 November 2016, all five Schengen States concerned notified the
- In the meantime, a series of measures proposed by the Commission for better managing the
- operationalisation of the European Border and Coast Guard, the establishment of the hot-spots
- Commission proposal for a Regulation of the European Parliament and of the Council on the European
- Communication from the Commission to the European Parliament, the European Council and the
- See Communication from the Commission to the European Parliament, the European Council and the
ANDIMPACTASSESSMENTS
Ex-post evaluations/fitness
checks of existing legislation
• Stakeholder consultations
Given the urgency of the proposal, a stakeholder consultation was not feasible.
• Collection and use of expertise
• 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
• Fundamental rights
The protection of fundamental rights was taken into account during the drafting of the proposal.
4. BUDGETARYIMPLICATIONS
The proposed measure has no implications for the EU budget.
5. OTHERELEMENTS
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