Changes from plenary report to adopted text

RemovedDRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

AddedP9_TA(2024)0323

Removedon the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders

AddedSchengen Borders Code

Removed(COM(2021)0891 – C90473/2021 – 2021/0428(COD))

AddedCommittee on Civil Liberties, Justice and Home Affairs

AddedPE737.471

AddedEuropean Parliament legislative resolution of 24 April 2024 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders (COM(2021)0891 – C9-0473/2021 – 2021/0428(COD))

▸7 unchanged paragraphs

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0891),

– having regard to Article 294(2) and Article 77(2), point (b) and (e) and Article 79(2), point (c) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90473/2021),

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

– having regard to the opinion of the European Economic and Social Committee of 18 May 2022,

– having regard to the opinion of the Committee of the Regions of 12 October 2022,

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 14 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 (A9-0280/2023),

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

RemovedCitation 1: Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (e) thereof,

AddedP9_TC1-COD(2021)0428

RemovedRecital 1 a (new): (1a) The creation of an area in which the free movement of persons across internal borders is ensured is one of the main achievements of the Union. The normal functioning and strengthening of such an area, which is based on trust and solidarity, should be a common objective of the Union and the Member States which have agreed to take part in it. The absence of internal borders and the sharing of external borders create a common responsibility for Member States to ensure an area of freedom, security, and justice. In this respect, the temporary reintroduction of internal border control should be exceptional and used only as a last resort, where appropriate subject to consultation and cooperation between the Member States concerned and under the control of the Commission.

AddedPosition of the European Parliament adopted at first reading on 24 April 2024 with a view to the adoption of Regulation (EU) 2024/… of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders

RemovedRecital 2: (2) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 (“Schengen Borders Code”)42 provides for the absence of border control of persons crossing the internal borders of the Member States of the Union and lays down rules governing border control of persons crossing the external borders of the Member States of the Union. .

Added(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) 2024/1717.)

RemovedRecital 3: (3) In recent years, several Member States have resorted to internal border control to address challenges, which by their nature were not confined to the territory of any single Member State. In an area of freedom, security and justice, the preservation of public order and security in the Schengen area is a shared responsibility requiring joined and coordinated action at Union level and between Member States, on the basis that that area of freedom, security and justice remains one that is free of internal border controls. The challenges faced by Member States, and the fact that Member States quickly resorted to internal border control to address those challenges, highlighted difficulties with the existing rules governing the functioning of the Schengen area and the enforcement of those rules, both at external and internal borders. It also underscored the need for a clearer and more robust framework in order to strengthen mutual trust and solidarity and to ensure the absence of any controls on persons, irrespective of their nationality, when crossing internal borders while enabling Member States to provide an effective response to challenges they face.

RemovedRecital 4: (4) Border control at external borders, in full compliance with the fundamental rights, is in the interest not only of the Member State at whose external borders it is carried out but of the Union as a whole and of all its Member States, in particular those which have abolished internal border control. Member States are required to ensure high standards in management of their external borders, including through enhanced cooperation between border guards, police, customs and other relevant authorities. The Union provides active support through the provision of financing support by the Agencies, and management of the Schengen Evaluation Mechanism. The rules applicable to external borders need to be amended and harmonised in order to better respond to new challenges that have recently emerged at the external borders.

RemovedRecital 5: (5) The COVID-19 pandemic has shown that threats to public health can require uniform rules concerning travel restrictions for travel into the European Union by third country nationals. The adoption of inconsistent and divergent measures at the external borders to address such threats negatively affects the functioning of the entire Schengen area, reduces predictability for third-country travellers and people-to-people contacts with third countries. To prepare the Schengen area for future challenges of a scale comparable to the Covid-19 pandemic, a new mechanism should be established which would allow for a timely adoption and lifting of coordinated measures at Union level. The new procedure at the external border should be applied to a large-scale public health emergency with a serious cross-border threat to health, recognised by the Commission at Union level in accordance with Regulation (EU) 2022/237143. / 43 Regulation (EU) 2022/2371 of the European Parliament and of the Council of 23 November 2022 on serious cross-border threats to health and repealing Decision No 1082/2013/EU (OJ L 314, 6.12.2022, p. 26). / (deleted)

RemovedRecital 6: (6) When there is a large-scale public health emergency with a serious cross-border threat to health, the Commission should be able to adopt delegated acts providing for temporary restrictions on travel to the Member States, including restrictions on entry and any other necessary measures for travel into the European Union, and the conditions for lifting those restrictions and other measures. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. When preparing and drawing up delegated acts the Commission should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

RemovedRecital 7: (7) Importantly, in line with the applicable obligations under Union and international law, Union citizens and third-country nationals who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens, as well as their respective family members should always be permitted to enter the Union. Similarly, in accordance with Union law and international law, beneficiaries of international protection and those persons seeking asylum shall not be prohibited from entering the Union. Residents in the Union should also always be permitted to return to the Union. That delegated act should contain all necessary elements to ensure that restrictions on travel are effective, targeted, non-discriminatory and proportionate to the evolving epidemiological situation. It should specify, where relevant, any categories of travellers whose travel should be exempted from restrictions on entry. In addition, or alternatively, the act should specify any geographical areas or third countries from which travel may be subject to specific measures, based on an objective methodology and criteria applicable thereto that should derive from the epidemiological situation. The act could specify the conditions under which travel may be permitted such as testing, quarantine, self-isolation or any other appropriate measures, such as the need to fill in a passenger locator form or other cont…

RemovedRecital 8: deleted

RemovedRecital 9: deleted

RemovedRecital 10: deleted

RemovedRecital 11: deleted

RemovedRecital 12: deleted

RemovedRecital 13: (13) The European Border and Coast Guard Agency assists Member States with implementing the operational aspects of external border management, including information exchange, the provision of equipment, capacity building and training to national border guards, targeted information and risk analysis, the deployment of the Standing Corps, as well as assistance in search and rescue operations for persons in distress at sea launched and carried out in accordance with Regulation (EU) No 656/20141a. The Agency’s new mandate offers considerable opportunities for Member States to be assisted in their border control activities, including with regard to return operations and a launch of rapid border intervention and/or return intervention at the request and on the territory of the host Member State concerned. These activities are to be conducted in compliance with fundamental rights obligations. / 1a Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 189, 27.6.2014, p. 93).

RemovedRecital 14: (14) By virtue of Article 41(1) of Regulation (EU) 2019/1896, on the basis of the results of a vulnerability assessment or where a critical impact level is attributed to one or more external border sections of a Member State, the Executive Director of the European Border and Coast Guard Agency is required to recommend to a Member State that it request the Agency to initiate, carry out or adjust the Agency’s support. This competence of the Executive Director is without prejudice to the general support that the Agency may provide to the Member States.

RemovedRecital 15: (15) Where a Member State considers it necessary to reinforce border control, and where it considers using modern technologies including drones and motion sensors, as well as mobile units, it is important that the use of any such technologies capable of collecting personal datarespects EU primary law, especially the Charter of Fundamental Rights, and Union data protection law, and that it is based on and exercised in accordance with clearly defined provisions of national law.

RemovedRecital 16: (16) In accordance with EU rules on the use of artificial intelligence and Union data protection law, the Commission should be empowered to specify, in delegated acts adopted under this Regulation, appropriate standards for border surveillance, concerning in particular the new technologies that Member States may use, while taking into account the type of borders (land, sea or air), the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 and other relevant factors. During such surveillance, third-country nationals should not be subject to intrusive biometric technologies.

RemovedRecital 17: (17) In an area without internal border controls, persons, irrespective of their nationality, should be able to move freely, and in security between Member States. In this regard, it should be clarified that the prohibition of controls at internal borders does not affect the competence of Member States to carry out checks on their territory for purposes other than border control. It should, in particular, be clarified that national competent authorities, including health or law enforcement authorities, remain, in principle entitled to exercise public powers provided for under national law provided that the effect of those powers is not equivalent to internal border control and does not lead to any form of discrimination.

RemovedRecital 18: (18) While the prohibition of internal border controls also extends to checks having equivalent effects, checks by police or other public powers might not be considered equivalent to the exercise of border checks where they do not have border control as an objective, where they are based on general law enforcement information and experience regarding possible threats to public security or public policy, where they aim in particular to combat cross-border crime, reduce irregular migration or contain the spread of an infectious disease with epidemic potential as identified by the European Centre for Disease Control, where they are devised and executed in a manner clearly distinct from systematic checks on persons at the external or internal borders, and where they are conducted at transport hubs, such as ports, train or bus stations and airports or directly on board of passenger transport services, and where they are based on risk analysis. At the same time, where competent authorities exercise police powers in a border area, they are entitled to do so only subject to strict detailed rules and limitations laid down by Member States in order not to jeopardise the attainment of the objective of the abolition of internal border controls.

RemovedRecital 19: (19) Migration and the crossing of external border by a large number of third-country nationals should not, per se, be considered to be a threat to public policy or internal security.

RemovedRecital 20: (20) To counteract irregular migration and cross-border crime linked to irregular migration, such as human trafficking, migrant smuggling and document fraud, and to combat other forms of cross-border crime, Member States could be required to take measures to verify the identity, nationality and residence status of persons provided that such verifications are, not systematically carried out at the border or in border regions, do not breach the principle of non-discrimination, and are carried out on the basis of risk analysis.

RemovedRecital 21: (21) The use of modern technologies to monitor traffic flows, notably on motorways and other important roads determined by the Member States, can be instrumental in addressing threats to public policy or internal security. The prohibition of internal border controls should not be understood as preventing the lawful exercise of police or other public powers to carry out checks that entail the use of monitoring and surveillance technologies which are generally used in the territory or that are based on a risk assessment for the purpose of protecting internal security.

RemovedRecital 22: deleted

RemovedRecital 23: deleted

RemovedRecital 24 a (new): (24a) Before resorting to the reintroduction of border control at internal borders, Member States should give precedence to alternative measures. Member States should assess whether the situation could be adequately addressed by way of increased cross-border cooperation, both from an operational point of view and from that of information exchange between police services and other competent authorities of the Member State.

RemovedRecital 24 b (new): (24b) In the absence of internal border controls, targeted joint patrols in intra-EU border areas are a valuable tool to counter migrant smuggling and trafficking in human beings, to prevent irregular stays and cross-border crime linked to irregular migration. It is possible that such checks prove more effective than internal border controls, in particular as they are more flexible and can be adapted more easily to evolving risks. When opting for cross-border police cooperation, it is important that they are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders and in a non-discriminatory manner.

RemovedRecital 25: (25) In order to strengthen the functioning of the Schengen area, andto assist Member States in countering irregular migration, including between Member States, and combat irregular stays, within the last ten years, the Union legislature has adopted numerous flanking measures, including the establishment of an Entry-Exit System, the establishment of a European Travel Information and Authorisation System, the establishment of a European Criminal Records database in respect of third country nationals, the reform of the Schengen Information System, the reform of the Visa Information System, two substantial overhauls of the mandate of the European Border and Coast Guard Agency, and the establishment of an interoperability framework to allow EU databases in the Area of Freedom, Security and Justice to communicate with one another.

RemovedRecital 25 a (new): (25a) Where, in the context of joint police patrols as part of cross-border police operational cooperation, national law enforcement authorities of a Member State apprehend third country nationals, who have no right to stay, in the vicinity of internal borders, and where that Member State has not reintroduced internal border control, , it should then be possible for those authorities to transfer those third country nationals to the Member State from which they entered, where the law enforcement authorities of that latter Member State are participating in the joint police patrols. The Member State from where the person came directly should in turn be required to receive the apprehended third country nationals.

RemovedRecital 25 b (new): (25b) To prevent racial profiling, the information on the basis of which joint police patrols are carried out in the vicinity of the internal borders should not be based on information collected through automated processing of data available in different data sources or in different data formats in order to forecast or predict trends related to migration and border crossings.

RemovedRecital 26: (26) The procedure by which a Member State may transfer third country nationals with no right to stay to a Member State from where the person came directly should take place swiftly but be limited and subject to safeguards and carried out in full respect of fundamental rights, in particular the principle of non-discrimination enshrined in Article 21 of the Charter. Since Union-level rules governing persons seeking international protection and beneficiaries of international protection are laid down in the asylum acquis, including the procedures for the transfer of such persons between Member States, it should be clear that this procedure does not apply, in any circumstances, to persons seeking international protection or beneficiaries of international protection. In line with Articles 9 and 24 of the Charter, such a procedure should not apply to minors or members of their family arriving together from another Member State. Moreover, the procedure should also not apply to third-country nationals who are holders of long-term residence permits or their family members, third-country nationals who enjoy the right to free movement in the Union, third-country nationals who are holders of valid long-stay visas and their family members in accordance with national law, third country nationals who are holders of a valid short stay visa or to third country nationals who are entitled to visa-free travel within the Schengen Area in so far as they have been on the territory for less than 90 …

RemovedRecital 26 a (new): (26a) It should be possible for the authorities to carry out a verification of relevant information immediately available to the authorities concerning the movements of the persons who might be the subject of such a procedure. Such information can include objective elements that would allow the authorities to conclude that the person had recently travelled from another Member States, such as the possession of documents, including receipts or invoices, evidencing recent travel from another Member State. Third country nationals subject to the transfer procedure should be provided with a reasoned decision in writing. While the decision should be immediately enforceable, the third country national should have an effective remedy before a court or tribunal to appeal against or seek review of the transfer decision. That remedy should not have suspensive effect.

RemovedRecital 27: (27) Nothing in this Regulation should affect the existing possibility for Member States to return irregular third country nationals in accordance with bilateral agreements or arrangements referred to in Article 6(3) of Directive 2008/115/EC (the “Return Directive”), where such persons are detected outside of the vicinity of internal borders.

RemovedRecital 28: (28) In exceptional cases, addressing identified threats to the Schengen area may, as a last resort, require the adoption of measures at the internal borders by the Member States. As free movement of persons is affected by the temporary reintroduction of internal border control, any decision to reintroduce such control should be taken in accordance with commonly agreed criteria and should be duly notified to the Commission, the Parliament and the Council or be recommended by a Union institution. Within the framework and limits laid down in this Regulation, Member States remain competent to determine the need for the temporary reintroduction of border controls. Under the existing rules, the reintroduction of controls at internal borders is provided for in circumstances where a serious threat to internal security or public policy manifests itself in a single Member State for a limited period of time. In particular, terrorism and organised crime, large scale public health emergencies or large scale or high profile international events such as sporting, trade or political events can amount to a serious threat to public policy or internal security.

RemovedRecital 29: (29) Furthermore, it is possible to consider that a serious threat to public policy or internal security could also result from an exceptional situation in which there is an unexpected and sudden large-scale unauthorised movement of irregular migrants between the Member States, where this creates a situation putting at risk of the overall functioning of the area without internal border controls, where the other means provided for under this Regulation are assessed not to be sufficient to address these inflows and movements. In this context, Member States should be able to rely on objective and quantified reports on unauthorised movements whenever available, in particular, when produced on a regular basis by the competent Union agencies in line with their respective mandates.

RemovedRecital 30: (30) While action at Union level is provided for in circumstances where the nature of a threat derives from persistent serious deficiencies at the external borders, there is no Union-wide mechanism to ensure Union-wide coordination where, within the Schengen area, a serious threat to internal security or public policy area is affecting several Member States at the same time, putting at risk the well-functioning of the Schengen area. The gap should be filled by putting in place a new Schengen area safeguard mechanism permitting coordinated solutions to protect the interests of persons entitled to benefit from the area without controls at internal borders, by maximising the effectiveness of the measures taken while minimising their negative side-effects.

RemovedRecital 31: (31) Given the politically sensitive nature of a decision which regulates the possibility for Member States to reintroduce or prolong internal border control in particular circumstances, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to initiate the new Union-level Schengen area safeguard mechanism authorising the reintroduction or prolongation of internal border controls, where this is justified by a particular threat, identified on the basis of notifications received from several individual Member States, a risk assessment, and other available information, and to provide supplementary rules on mitigating measures that should be established at national and Union level. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. When preparing and drawing up delegated acts, the Commission should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.