Changes from plenary report to adopted text

RemovedDRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

AddedP9_TA(2024)0181

Removedon the proposal for a regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817

AddedScreening of third country nationals at the external borders

Removed(COM(2020)0612 – C90307/2020 – 2020/0278(COD))

AddedCommittee on Civil Liberties, Justice and Home Affairs

AddedPE700.425

AddedEuropean Parliament legislative resolution of 10 April 2024 on the proposal for a regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (COM(2020)0612 – C9-0307/2020 – 2020/0278(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2020)0612),

Changed– having regard to Article 294(2) and Article 77(2) points (b) and (d)(d), of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90307/2020),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Changed– having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Hungarian Parliament and the Italian SenateSenate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

Added– having regard to the opinion of the European Economic and Social Committee of 25 February 2021,

Added– having regard to the opinion of the Committee of the Regions of 19 March 2021,

Added– having regard to the provisional agreement approved by the committee responsible under Rule 74(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 8 February 2024 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

▸5 unchanged paragraphs

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0149/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 1: (1) The Schengen area was created to achieve an area without internal frontiers in which the free movement of persons is ensured, as set out in Article 3(2) of the Treaty on European Union (TEU). The good functioning of this area relies on mutual trust between the Member States and efficient management of the external border.

AddedP9_TC1-COD(2020)0278

RemovedRecital 2: (2) The rules governing border control of persons crossing the external borders of the Member States of the Union are laid down in Regulation (EU) 2016/399 of the European Parliament and of the Council (Schengen Borders Code)21 as adopted under Article 77(2)(b) of the Treaty on the Functioning of the European Union (TFEU). To further develop the Union’s policy with a view to carrying out checks on persons and efficiently monitoring the crossing of external borders referred to in the first paragraph of Article 77 TFEU, additional measures should address situations where third-country nationals are apprehended in connection with an irregular crossing of the external borders, where third-country nationals are disembarked following search and rescue operations and where third-country nationals request international protection at a border crossing point without fulfilling entry conditions. This Regulation complements and clarifies Regulation (EU) 2016/399 [Schengen Borders Code] with regard to those three sets of situations. / 21 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p.1).

AddedPosition of the European Parliament adopted at first reading on 10 April 2024 with a view to the adoption of Regulation (EU) 2024/… of the European Parliament and of the Council introducing the screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817

RemovedRecital 3: (3) It is essential to ensure that where third-country nationals are apprehended in connection with an irregular crossing of the external borders, where third-country nationals are disembarked following search and rescue operations and where third-country nationals request international protection at a border crossing point without fulfilling entry conditions, such third-country nationals are screened, in order to facilitate a proper identification and to enable an efficient referral to the correct procedure, which, depending on the circumstances, might be the procedure for international protection as laid down in Regulation (EU) XXXX/202X of the European Parliament and of the Council [Asylum Procedures Regulation] or the procedure respecting Directive 2008/115/EC of the European Parliament and of the Council22 (the “Return Directive”) without prejudice to Member States’ discretion in accordance with Article 6(5) of Regulation (EU) 2016/399 [Schengen Borders Code]. Persons identified as stateless persons or at risk of becoming stateless persons during the screening should be referred to the competent authorities which should determine whether the individual is a stateless person and offer adequate protection, in accordance with national law. The screening should seamlessly complement the checks carried out at the external border. Where applicable, the checks carried out in the context of the screening may also form part of the checks to be performed in the context of subseque…

Added(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) 2024/1356.)

RemovedRecital 4: (4) Border control is not only in the interest of the Member States at whose external borders it is carried out but of all Member States. Border control should help reduce irregular migration, protect victims of trafficking of human beings and prevent any threat to the Member States’ internal security, public health and international relations. At the same time, when carrying out border control, Member States should act in compliance with relevant Union and international law, including the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 ("the Geneva Convention"), obligations related to international protection, in particular the principle of non-refoulement, and fundamental rights. As such, measures taken at the external borders are important elements of a comprehensive approach to asylum and migration.

RemovedRecital 4 a (new): (4a) As part of a comprehensive approach to migration and border management and in accordance with Article 80 TFEU, Union law should contain appropriate measures to give effect to the principle of solidarity and fair sharing of responsibility.

RemovedRecital 5: (5) In accordance with Article 2 of Regulation (EU) 2016/399 [Schengen Borders Code], border control consists of border checks carried out at the border crossing points and border surveillance, which is carried out between the border crossing points. In accordance with Article 13 of Regulation (EU) 2016/399 [Schengen Borders Code] a person who has crossed a border in an irregular manner and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC. However, Article 3 of Regulation (EU) 2016/399 [Schengen Borders Code] clarifies that border control should be carried out without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.

RemovedRecital 6: (6) Border guards are often faced with third-country nationals who have no travel or identification documents and who are requesting international protection, both following apprehension during border surveillance and during checks at the border crossing points. Moreover, it is possible that at some border sections the border guards are faced with large numbers of arrivals at the same time. In such circumstances, it is particularly important to ensure that relevant databases are consulted and to determine the appropriate procedure as quickly as possible.

RemovedRecital 7: (7) In order to ensure an improved and swift handling of third-country nationals who have not been subject to border checks or who request international protection at a border crossing point without fulfilling the entry conditions or who are disembarked following a search and rescue operation, it is necessary to provide a stronger framework for cooperation between the different national authorities responsible for border control, the protection of public health, child protection, the examination of the need for international protection and the application of return procedures.

RemovedRecital 8: (8) In particular, the screening should help to ensure that the third-country nationals concerned are referred to the appropriate procedures at the earliest stage possible and that the procedures are continued without interruption and delay. At the same time, the screening could help discourage secondary movements in the Schengen area.

RemovedRecital 9: (9) With regard to those persons who apply for international protection, and without prejudice to Regulation (EU) No XX/XXX [Asylum and Migration Management Regulation], the screening should enable the screening authorities to collect and share any relevant information with the competent authorities for examining an application for international protection without assessing the value of that information. The screening should also contribute to identifying vulnerable persons and persons with special needs at an early stage, so that any medical, special reception or procedural needs are fully taken into account in the determination of and the pursuit of the applicable procedure.

RemovedRecital 10: deleted

RemovedRecital 11: (11) This Regulation should apply to third-country nationals and stateless persons who are apprehended in connection with an irregular crossing of the external border of a Member State by land, sea or air, except those for whom the Member State is not required to take the biometric data pursuant to Article 14(1) and (3) of Regulation (EU) xxxx/202x [Eurodac Regulation] for reasons other than their age, as well as to those third-country nationals who have been disembarked following search and rescue operations and do not fulfil the entry conditions set out in Article 6 of Regulation (EU) 2016/399 [Schengen Borders Code] and to those third-country nationals who apply for international protection at the border crossing points or in transit zones without fulfilling the entry conditions set out in Article 6 of Regulation (EU) 2016/399 [Schengen Borders Code].

RemovedRecital 12: (12) The screening may be conducted at any appropriate and adequate location within the territory of a Member State. Member States should designate any location used for the screening, which may be located at or in proximity to the external border taking into account geography and existing infrastructures.

RemovedRecital 12 a (new): (12a) In individual cases, where required, the screening may include detention, subject to the relevant Union and national law regulating that matter, in particular Directive (EU) xxxx/xxxx [Reception Conditions Directive]. The provisions regarding detention set out in that directive should apply mutatis mutandis to all persons subject to the screening.

RemovedRecital 13: (13) Wherever it becomes clear during the screening of a third-country national that such third-country national fulfils the conditions of Article 6 of Regulation (EU) 2016/399 [Schengen Borders Code], the screening should end and, if it is not already the case, the person concerned should be authorised to enter the territory, without prejudice to the application of penalties as referred to in Article 5(3) of that Regulation.

RemovedRecital 14 a (new): (14a) Persons applying for international protection to whom Member States may not apply or may no longer apply a border procedure in accordance with Article 41( 3a) of Regulation (EU) xxxx/202x [Asylum Procedure Regulation], should be authorised to enter the territory.

RemovedRecital 15: (15) All persons subject to the screening should be submitted to checks in order to verify or establish their identity and to verify whether they might pose a threat to internal security or public health. In the case of persons requesting international protection at border crossing points, the identity and security checks carried out in the context of border checks should be taken into account to avoid duplication.

RemovedRecital 16: (16) On completion of the screening, the third-country nationals concerned should be either referred to the procedure to establish responsibility for examining an application for and to assess the need for international protection, or be made subject to procedures respecting Directive 2008/115/EC [Return Directive] without prejudice to Article 6(5) of Regulation (EU) 2016/399 [Schengen Borders Code]. The screening form containing the collected information should be provided to the competent authorities to support the further assessment of each individual case, in full respect of fundamental rights. The procedures established by Directive 2008/115/EC should start applying only after the screening has ended. Persons expressing a wish to apply or applying for international protection at the moment of apprehension, in the course of border control at the border crossing point or during the screening, should be considered applicants for international protection from the moment they express their wish to apply for international protection and Regulation (EU) xxxx/xxxx [Asylum Procedure Regulation] and Directive (EU) xxxx/xxxx [Reception Conditions Directive] should apply to them.

RemovedRecital 17: (17) Under the mechanism for solidarity established by Regulation (EU) XXX/XXX [Asylum and Migration Management] or under the mechanism addressing situations of crisis established by Regulation (EU) XXX/XXX [Crisis Regulation], Member States are encouraged to relocate applicants for international protection swiftly and without undue delay after the screening.

RemovedRecital 18: deleted

RemovedRecital 19: (19) The screening should be completed as soon as possible, and should not exceed five days.

RemovedRecital 19 a (new): (19a) In a situation of crisis in accordance with Regulation (EU) XXX/XXXX [Crisis Regulation] the screening should be carried out at the latest within ten days. Member States should still always carry out the screening without delay and as quickly as possible.

RemovedRecital 20: deleted / (deleted)

RemovedRecital 21: (21) In order to achieve the objectives of the screening, close cooperation should be ensured between the competent national authorities referred to in Article 16 of Regulation (EU) 2016/399 [Schengen Borders Code], those referred to in Article 5 of Regulation (EU) xxxx/xxxx [Asylum Procedures Regulation] as well as those responsible for carrying out return procedures respecting Directive 2008/115/EC. In that regard, it is important to avoid the duplication of obligations on Member States and applicants for international protection regarding the procedures in place, and the duplication of rules concerning reception conditions and grounds on which persons might be detained. Member States should be allowed and are encouraged to avail themselves of the support of the relevant agencies, in particular the European Border and Coast Guard Agency and the European Union Agency for Asylum, within the limits of their mandates. Member States should involve the national Rapporteurs for Anti-trafficking wherever the screening reveals facts relevant for trafficking in line with Directive 2011/36/EU of the European Parliament and of the Council24. / 24 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (OJ L 101, 15.4.2011, p. 1).

RemovedRecital 21 a (new): (21a) During the screening procedure, the best interests of the child should always be a primary consideration in accordance with Article 24(2) of the Charter of Fundamental Rights of the European Union (the ‘Charter’). Child protection authorities should, wherever necessary, be closely involved in the screening to ensure that the best interests of the child are duly taken into account throughout the screening. A representative should be appointed to represent and assist the unaccompanied minor during the screening. Where applicable, this representative should be the same as the representative to be appointed in accordance with Article 23 of Directive (EU) XXX/XXX [Reception Conditions Directive].

RemovedRecital 22: (22) When applying this Regulation, the Member States should comply with the Charter, relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), and ensure the respect for human dignity and should not discriminate against persons on grounds of sex, racial, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, disability, age or sexual orientation. Particular attention should be paid to the best interests of the child.

RemovedRecital 23: (23) In order to ensure compliance with Union and international law, including the Charter, during border surveillance and the screening procedure, each Member State should establish or designate a monitoring mechanism and put in place adequate safeguards for the independence of that mechanism in accordance with the Paris Principles, the Venice Principles, the United Nations General Assembly Resolution of 28 December 2020 on the role of the Ombudsman, and the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, in particular by involving national human rights institutions, national ombudspersons or international organisations in the management and operation of the mechanism. Member States may also involve relevant non-governmental organisations. The bodies responsible for the mechanism should establish and maintain close links with the national data protection authorities and the European Data Protection Supervisor. The mechanism should monitor the respect for fundamental rights in relation to border surveillance and the screening procedure, as well as the respect for the applicable rules regarding detention and compliance with the principle of non-refoulement as referred to in Article 3(b) of Regulation (EU) 2016/399 [Schengen Borders Code].

RemovedRecital 23 a (new): (23a) The Fundamental Rights Agency (FRA) should establish general guidance as to the establishment and the independent functioning of such monitoring mechanism. Member States should furthermore be allowed to request the support of the FRA for developing their national monitoring mechanism. Member States should also be allowed to seek advice from the FRA with regard to establishing the methodology for this monitoring mechanism and appropriate training measures.

RemovedRecital 23 b (new): (23b) The independent monitoring mechanism should be in addition and without prejudice to the monitoring of fundamental rights provided by the European Border and Coast Guard Agency’s fundamental rights monitors provided for in Regulation (EU) 2019/1896 of the European Parliament and of the Council1a, the monitoring mechanism for the purpose of monitoring the operational and technical application of the Common European Asylum System (CEAS) as set out in Article 14 of Regulation (EU) 2021/2303 of the European Parliament and of the Council 1b [EU Asylum Agency Regulation], the Schengen Evaluation and Monitoring Mechanism provided for in Council Regulation (EU) 2022/922 of the European Parliament and of the Council 1c and monitoring carried out by existing national or international monitoring bodies. Member States should investigate all allegations of non-respect of fundamental rights during border surveillance and the screening procedure, including by ensuring that complaints are dealt with promptly, expeditiously and are capable of leading to the identification and sanction of those responsible in an appropriate manner. / 1a Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1). / 1b Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asyl…

RemovedRecital 23 c (new): (23c) Member States should ensure that the implementation of the screening procedure, and the set up and operation of the independent monitoring mechanism, are adequately financed and resourced. To that end, Member States may request funding for the establishment and operation of the independent monitoring mechanism from Union funding sources, in particular the Integrated Border Management Fund (IBMF) provided for in Regulation (EU) 2021/1148.

RemovedRecital 23 d (new): (23d) The obligations on Member States to establish or designate an existing independent monitoring mechanism during border surveillance and the screening procedure set out in this Regulation as well as during the asylum and return border procedure set out in Article [XX] of Regulation (EU) xxxx/xxxx [Asylum Procedure Regulation] should be fulfilled through the establishment or designation of one mechanism that covers all relevant phases and procedures specified in the respective regulations.

RemovedRecital 24: (24) By the end of the screening, the authorities responsible for the screening should fill in a screening form. The form should be transmitted to the authorities examining applications for international protection or to the authorities competent for return – depending to whom the person is referred.

RemovedRecital 24 a (new): (24a) The information in the screening form should be recorded in such a way that it is amenable to administrative and judicial review during any subsequent asylum or return procedure. The person subject to the screening should have the possibility to indicate to the competent authorities that the information contained in the form is incorrect. Any such indication should be recorded in the screening form without delaying the completion of the screening.

RemovedRecital 24 b (new): (24b) The person concerned should be provided with a copy of the screening form before it is transmitted to the relevant authorities. In the case of minors, the copy of the form should be provided to the adult or adults responsible for the child. In the case of unaccompanied minors, the form should be provided to the representative of the child.

RemovedRecital 24 c (new): (24c) The processing of data during the screening procedure should always be carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council1a [GDPR], Regulation 2018/1725 of the European Parliament and of the Council1b or, where relevant, Directive 2016/680 of the European Parliament and of the Council1c [Police Directive], including the general principles of data minimisation and purpose limitation. Particular attention should be given to Article 13 of Regulation (EU) 2016/679 [GDPR], Article 13 of Directive (EU) 2016/680 [Police Directive] and Article 15 of Regulation (EU) 2018/1725, including the right to request from the data controller access to and rectification or erasure of personal data and the right to lodge a complaint with a supervisory authority. When implementing this Regulation, all relevant opinions and recommendations of the European Data Protection Board and European Data Protection Supervisor should be taken into account. / 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). / 1b Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union…