Changes from report parliamentary committee draft to plenary report

RemovedSuch indefinite internal border controls have been ruled unlawful by the CJEU.

RemovedRecital 45: (45) In order to enable the post factum analysis of the decision on the temporary reintroduction of border controls at the internal borders, Member States should remain obliged to submit a report on the introduction of border control at internal borders to the European Parliament, the Council and the Commission once they lift the controls. Where the controls are kept in place for a period exceeding six months, such a report should also be submitted after that first six months period. The report should outline, in particular, the initial and follow-up assessment of the necessity of internal border controls and the respect of the criteria for reintroduction of border controls at internal borders. The Commission should adopt in an implementing act a template and make it available online.

Recital 46: (46) When implementing this Regulation, Member States shall not discriminate against persons on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

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RemovedAlligned with Article 21 of the Charter of Fundamental Rights.

AddedRecital 47: (47) The competent authorities referred to in this Regulation shall in all their activities undertaken in accordance with this Regulation fully respect the rules on data protection under Union law. Regulation (EU) 2016/679 of the European Parliament and of the Council or Directive (EU) 2016/680 of the European Parliament and of the Council apply to the processing of personal data by competent national authorities for the purposes of this Regulation, in their respective field of application.

RemovedRegulation (EU) 2016/399

AddedRecital 56: (56) Regulation (EU) No 2016/399 should therefore be amended accordingly,

RemovedArticle 1 – paragraph 1 – point 1 – point b, Article 2 – paragraph 1 – point 27: 27. ‘large scale public health emergency’ means a situation where the European Centre for Disease Prevention and Control has identified the existence in one or more third countries of an infectious disease with epidemic potential as defined by the relevant instruments of the World Health Organization.

AddedRegulation (EU) No 2016/399

RemovedThe use of the term “large scale public health emergency” in Article 25 requires a suitable definition. In line with the other provisions related to public health, a large scale public health emergency means the existence of an epidemic. There is no justification or added value for including a definition of “instrumentalisation” in the Schengen Borders Code. If there is to be such a definition, then it should properly be in the proposed Regulation on Instrumentalisation.

AddedArticle 1 – paragraph 1 – point 1 – point a, Article 2 – paragraph 1 – point 12: 12. ‘border surveillance’ means the surveillance of borders between crossing points and of border crossing points outside fixed opening hours in order to prevent unauthorised border crossings or the circumvention of border checks, and to provide situational awareness .

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AddedArticle 1 – paragraph 1 – point 1 – point b, Article 2 – paragraph 1 – point 27: deleted

AddedRegulation (EU) No 2016/399

AddedArticle 1 – paragraph 1 – point 1 – point b, Article 2 – paragraph 1 – point 27 a (new): 27a. ‘large scale public health emergency’ means a public health emergency where a serious cross-border threat to health necessitates coordination at Union level in order to ensure a high level of protection of public health, recognised by the Commission at Union level in accordance with Regulation (EU) 2022/2371;

AddedRegulation (EU) No 2016/399

Article 1 – paragraph 1 – point 2, Article 5 – paragraph 4: deleted / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted)

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RemovedIt is not clear why Member States, who are already entitled to close border crossing points (BCP) under the current Schengen Borders Code, need new grounds on which to do so. From a practical perspective, if persons are arriving at the external border seeking protection, it is important that BCPs remain open so that they can effectively exercise their right to seek protection.

AddedRegulation (EU) No 2016/399

RemovedRegulation (EU) 2016/399

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 1: 1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to provide situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border irregularly. / Without prejudice to Articles 3 and 4, a person who has crossed a border irregularly 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.

RemovedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 1 – subparagraph 2: Without prejudice to Articles 3 and 4, a person who has crossed a border irregularly 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.

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RemovedThe crossing of borders is not illegal. The application of the Return Directive must be without prejudice to the rights of those seeking international protection

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 2: 2. The border guards shall use all necessary resources, including stationary or mobile units to carry out border surveillance. / That surveillance shall be carried out in such a way as to prevent and discourage persons from unauthorised border crossings between border crossing points and from circumventing the checks at border crossing points, while complying fully with the obligations laid down in Article 4.

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RemovedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 4: 4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to prevent unauthorised border crossings or apprehend individuals crossing the border irregularly. Surveillance may also be carried out by technical means, including electronic means, equipment and surveillance systems and shall be conducted in accordance with Article 5 of Regulation (EU) .../... of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts.

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 3: 3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats, including the possible risk to life of those seeking to cross the border. It shall involve frequent and sudden changes to surveillance periods and other methods or techniques, so that it is possible for unauthorised border crossings to be effectively prevented.

RemovedIn a time of rapid technological advances, in particular in the field of artificial intelligence, it is important to underline the that there are limitations on equipment that should be used for border surveillance.

AddedRegulation (EU) No 2016/399

RemovedRegulation (EU) 2016/399

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 4: 4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to prevent unauthorised border crossings or apprehend individuals crossing the border irregularly. Surveillance may also be carried out by technical means, including electronic means, equipment and surveillance systems, where it is conducted in accordance with Article 5 of the future Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act).

AddedRegulation (EU) No 2016/399

Article 1 – paragraph 1 – point 3, Article 13 – paragraph 5: deleted / (deleted)

Change 25

RemovedConsequential amendment based on the Rapporteur’s view that instrumentalisation should not form part of the SBC. It is not clear what the remaining added value of the provision would be.

Regulation (EU) No 2016/399

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RemovedArticle 1 – paragraph 1 – point 3, Article 13 – parargaph 6: deleted / (deleted) / (deleted)

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 6: 6. Without prejudice to the support that the European Border and Coast Guard Agency may provide to the Member States, where a Member State introduces internal border controls on the basis of Article 25(1)(c), the Agency may, upon request of that Member State, also carry out a vulnerability assessment as provided for in Articles 10(1), point (c), and Article 32 of Regulation (EU) 2019/1896 of the European Parliament and Council57 , with a view to providing the necessary support to the Member State concerned.

RemovedConsequential amendment based on the Rapporteur’s view that instrumentalisation should not form part of the SBC. It is not clear what the remaining added value of the provision would be. This provision does not alter the mandate of the EBCG, therefore it has no added value.

AddedRegulation (EU) No 2016/399

RemovedRegulation (EU) 2016/399

AddedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 7: 7. For the purposes of paragraph 4, the Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning additional measures governing surveillance, including the development of standards for border surveillance, in particular the use of surveillance and monitoring technologies at the external borders, in line with the prohibitions, safeguards and transparency obligations laid down in the Artificial Intelligence Act, taking into account the type of borders, the impact levels attributed to each external border section in accordance with Article 34 of the Regulation (EU) 2019/1896 and other relevant factors.

RemovedArticle 1 – paragraph 1 – point 3, Article 13 – paragraph 7: 7. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning additional measures governing surveillance, including the development of standards for border surveillance, in particular the use of surveillance and monitoring technologies at the external borders, in line with Article 5 of the Artificial Intelligence Act, taking into account the type of borders, the impact levels attributed to each external border section in accordance with Article 34 of the Regulation (EU) 2019/1896 and other relevant factors.

AddedRegulation (EU) No 2016/399

RemovedThe use of artificial inteligece (AI) in surveillance and monitoring technologies will be establihsed in the AI Act. It is important to stress that any standards proposed by the Commission by way of delegated acts must be within the framework of that instrument, in so far as they concern AI.

AddedArticle 1 – paragraph 1 – point 4 – introductory part, Chapter V – title: (4) Chapter V is renamed as follows: “Specific measures relating to the external border control”

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RemovedArticle 1 – paragraph 1 – point 4 – introductory part, Chapter V – title: (4) Chapter V is renamed as follows: “Specific measures relating to the external borders control”

AddedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 1: 1. This Article shall apply to a large scale public health emergency, where a serious cross-border threat to health necessitates coordination at Union level in order to ensure a high level of human health protection, recognised by the Commission at Union level in accordance with 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.

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ChangedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 1: 1. This Article shall2: apply2. toIn situations where the European Centreof fora Diseaselarge Preventionscale andpublic Controlhealth identifyemergency the existence inCommission oneshall orbe moreempowered thirdto countriesadopt ofdelegated anacts infectiousin diseaseaccordance with epidemicArticle potential37 asproviding definedfor bytemporary therestrictions relevanton instrumentstravel ofto the World HealthMember Organization.States.

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RemovedIn order to avoid confusion or politicisation, the identification of such infectious diseases should be left to the competent Agency.

AddedRegulation (EU) No 2016/399

RemovedRegulation (EU) 2016/399

AddedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 2 – subparagraph 2: Such temporary restrictions on travel may include restrictions on entry to the Member States and other measures considered necessary for the protection of public health in the area without controls at internal borders, such as testing, quarantine, and self-isolation.

RemovedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 2 – subparagraph 1: The Council, on the basis of a proposal by the Commission, and after having consulted the European Parliament, may adopt an implementing regulation, providing for temporary restrictions on travel to the Member States.

AddedRegulation (EU) No 2016/399

RemovedWhile external border control remains primarily a Member States competence, it is competence shared with Frontex under the EBGC Regulation. In that context, where restrictions are to be introduced at Union level at external borders, the co-legislators must have a role in the relevant legal act.

AddedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 3 – point b a (new): ba) beneficiaries of international protection.

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