Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸7 unchanged paragraphs

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 – C90473/2021 – 2021/0428(COD))

(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,

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

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

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

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2022),(A9-0280/2023),

▸4 unchanged paragraphs

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.

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

Change 1

RemovedThe additional legal basis is deemed unnecessary, in particular in the light of the deletion of certain provisions of the Commission proposal.

AddedRecital 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.

Change 2

ChangedRecital 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. .

Change 3

RemovedAlignment with Article 1 of Regulation 2016/399.

AddedRecital 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.

Change 4

ChangedRecital 3: (3) In recent years,4: many(4) MemberBorder Statescontrol haveat resortedexternal toborders, internalin borderfull controlcompliance towith addressthe challenges,fundamental whichrights, byis theirin naturethe wereinterest not confined to the territoryonly of any singlethe Member State. InState anat areawhose ofexternal freedom,borders securityit andis justice,carried theout preservationbut of public order and security in the Schengen areaUnion isas a shared responsibilitywhole requiringand joinedof andall coordinatedits actionMember atStates, Unionin levelparticular andthose betweenwhich Memberhave Statesabolished oninternal theborder basiscontrol. thatMember thisStates areaare ofrequired freedom,to securityensure andhigh justicestandards remainsin freemanagement of internaltheir borderexternal controls.borders, Theincluding challengesthrough facedenhanced bycooperation Memberbetween States,border andguards, thepolice, factcustoms thatand Memberother Statesrelevant quicklyauthorities. resortedThe toUnion internalprovides borderactive controlsupport tothrough addressthe thoseprovision challenges,of highlightedfinancing difficultiessupport withby the existing rules governingAgencies, theand functioningmanagement of the Schengen area and the enforcementEvaluation ofMechanism. thoseThe rules,rules bothapplicable atto external and internal borders and the need forto abe cleareramended and moreharmonised robustin frameworkorder to ensure the absence of any controls on persons, whatever their nationality, when crossing internal borders whilebetter enablingrespond Memberto Statesnew tochallenges providethat anhave effectiverecently responseemerged toat challengesthe theyexternal face.borders.

Change 5

RemovedIt is important to identify the increased use of internal border control as a political response to problems often deep-rooted and more closely linked to different policy areas than Schengen. The Union’s policy in this area is defined in primary EU law and that policy should be reflected in the text of the Proposal.

AddedRecital 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 4: (4) Border control at external borders 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.

AddedRecital 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 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 where the European Centre for Disease Prevention and Control has identified an infectious disease with epidemic potential. This mechanism should complement the procedures proposed to be established in the Proposal for a Regulation of the European Parliament and of the Council on serious cross-border threats to health43 , notably in case of the recognition of a public health emergency, and the revised mandate of the European Centre for Disease Control.44

AddedRecital 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…

RemovedIt is not clear why the Commission should be entitled to identify infectious disease with epidemic potential. This is clearly a task for the European Centre for Disease Control.

RemovedRecital 6: (6) This Union-level mechanism should provide for the adoption by the Council, upon a proposal by the Commission, and after having consulted the European Parliament, of a regulation setting out restrictions on travel, 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. In view of the politically sensitive nature of such measures which concern the right to enter the territory of Member States, implementing powers should be conferred on the Council to adopt such a regulation, acting on a proposal from the Commission, and after having consulted the European Parliament.

RemovedParliament should have a role in the adoption of such Regulations governing entry into the Schengen area.

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 and international law, 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. The 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 contact tracing tool and having regard, in particular, to any Uni…

RemovedThe epidemiological situation must provide the basis for criteria applying when it comes to restricting travel and introducing restrictive measures in that regard. The Council Regulation would need to be revised if the epidemiological situation worsens to such an extent that measures not foreseen in the initial Regulation are needed. It would be expected that the initial Regulation would provide sufficient scope for measures to be proportionate to the threat to public health.

Recital 8: deleted

Change 6

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

Recital 9: deleted

Change 7

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

Recital 10: deleted

Change 8

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

Recital 11: deleted

Change 9

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

Recital 12: deleted

Change 10

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

AddedRecital 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 13: (13) The European Border and Coast Guard Agency assists Member States with implementing the operational aspects of external border management, including the provision of equipment, capacity building and training to national border guards, targeted information and risk analysis, as well as the deployment of the Standing Corps. 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.

AddedRecital 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.

RemovedNo screening procedure presently exists under EU law.

AddedRecital 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 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 be providing to the Member States.

AddedRecital 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.

RemovedAlignment with the wording of Article 41(1) of the EBCG Regulation

AddedRecital 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 15: (15) Where a Member State considers 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 data, needs to respect Union’s primary law and Union data protection law, and should be based on and exercised in accordance with clearly defined provisions of national law.

AddedRecital 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.

RemovedAs the protection of personal data is a fundamental right, any technologies used at the external or internal borders needs to be in line with the Charter of fundamental rights and with EU data protection law.

RemovedRecital 16: (16) In accordance with Union rules on the use of artificial intelligence, 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.

RemovedThe Commission has made a separate legal proposal with a separate legal base on the issue of instrumentalisation. It is not an issue to be addressed through the Schengen Borders Code.

RemovedRecital 17: (17) In an area without internal border controls, persons ‒ whatever 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.

RemovedTFEU Art 77(2)(e) requires the co-legislators to adopt measures concerning the absence of any controls on persons, whatever their nationality, when crossing internal borders. Aligned with the language of the current Schengen Borders Code, which also reflects the case-law of the CJEU.

RemovedRecital 18: (18) While the prohibition of internal border controls also extends to checks having equivalent effects, checks by police 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 police information and experience regarding possible threats to public security or public policy, where they aim in particular to combat cross-border crime, where they are devised and executed in a manner clearly distinct from systematic checks on persons at the external and 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 imperil the attainment of the objective of the abolition of internal border controls.