Changes from report parliamentary committee draft to plenary report

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RemovedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a – point ii: ii) are based on general police information and experience of the competent authorities regarding possible threats to public security or public policy and aim, in particular, to:

AddedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 4 – introductory part: 4. The delegated act referred to in paragraph 2 shall, where appropriate:

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ChangedRegulation (EU) No 2016/399

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RemovedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a – point ii – indent 2: deleted

AddedArticle 1 – paragraph 1 – point 4 – paragraph 1, Article 21a – paragraph 5a: 5a. Where, in a situation of a large scale public health emergency, imperative grounds of urgency so require, the procedure provided for in Article 37a shall apply to delegated acts adopted pursuant to this Article.

RemovedIn accordance with Recital 26 of the current Schengen Borders Code, migration should not, per se, be considered to be a threat to public policy or internal security. The use of border control measures to prevent migration within the Schengen area is contrary to the requirements on co-legislators laid down in Article 77(2)(e) TFEU.

AddedRegulation (EU) No 2016/399

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AddedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a: That exercise of police or other public powers by the competent authorities of the Member States in their territory, in particular in their border areas, shall not have a disproportionate impact on the fluid traffic flow at road crossing-points at internal borders, in particular, by leading to excessive waiting times. Within the meaning of the first subparagraph, the exercise by competent authorities of their powers may not, in particular, be considered equivalent to the exercise of border checks when the measures:

AddedRegulation (EU) No 2016/399

AddedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a – point ii: ii) are based on general law enforcement information and experience of the competent authorities regarding possible threats to public security or public policy and aim, in particular, to:

AddedRegulation (EU) No 2016/399

AddedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a – point ii – indent 2: — reduce irregular migration; or

AddedRegulation (EU) No 2016/399

AddedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point a – point ii – indent 3: — contain the spread of an infectious disease with epidemic potential as identified by the European Centre for Disease Control;

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AddedArticle 1 – paragraph 1 – point 5, Article 23 – paragraph1 – point a – point iv: iv) are carried out, where appropriate, on the basis of monitoring and surveillance technologies generally used in the territory, in accordance with the Artificial Intelligence Act and in line with national legislation, for the purposes of addressing threats to public security as set out under ii). / The general law enforcement information referred to in the second subparagraph, point ii), shall not include information collected through the 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;

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Article 1 – paragraph 1 – point 5, Article 23 – paragraph 1 – point e: deleted

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RemovedThis provision is not appropriate in the light of the CJEU ruling in Case C-817/19

AddedRegulation (EU) No 2016/399

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – title: Procedure for the possible transfer of persons apprehended in the vicinity of the internal borders

RemovedArticle 1 – paragraph 1 – point 6, Article 23a: deleted / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted) / (deleted)

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RemovedIt is not the role of the Schengen Borders Code to introduce an internal return procedure into the Schengen Area. This is clearly contrary to the spirit of the Schengen Area without internal border control and rather reflects the need for progress on reform of other policy areas.

AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – introductory part: 1. Without prejudice to Article 22, this Article applies to the apprehension of an irregularly-staying third-country national in the vicinity of internal borders, in circumstances where the following conditions are fulfilled:

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ChangedRegulation (EU) No 2016/399

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RemovedArticle 1 – paragraph 1 – point 8, Article 25 – paragraph 1 – subparagraph 2 – point a: (a) a direct and immediate threat of acts of terrorism or of serious organised crime;

AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – point a: deleted

RemovedIt is important to recall that internal border control is a measure of last resort. The provision as proposed is much too broad in that context.

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – point b: deleted

RemovedArticle 1 – paragraph 1 – point 8, Article 25 – paragraph 1 – subparagraph 2 – point c: deleted

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – point c: c) the third country national is apprehended during joint police patrols as part of cross-border police operational cooperation;

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – point d: d) there are clear indications that the third country national has arrived directly from another Member State, on the basis of information immediately available to the apprehending authorities, including statements from the person concerned, identity, travel or other documents belonging to that person or the results of searches carried out in relevant national and Union databases;

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 – point d a (new): da) the Member State intending to avail itself of the procedure has not reintroduced or prolonged internal border control in accordance with Article 25a;

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 1 a (new): 1a. The procedure laid down in paragraph 1 shall not apply to the following categories of person: / a) unaccompanied minors; / b) minors and members of their family arriving together from another Member State; / c) third-country nationals who are holders of EU long-term residence permits and their family members in accordance with Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents; / d) third-country national family members of Union citizens enjoying the right to free movement in accordance with Directive 2004/38; / e) third-country nationals who are holders of a valid long-stay visa and their family members in accordance with national law; / f) third-country nationals who are holders of a valid short-stay visa; / g) third-country nationals who are entitled to visa-free travel within the Schengen Area for a 90-day period in any 180-day period, in so far as they have not exceeded that 90-day period; / h) applicants for international protection within the meaning of Article 4 of Regulation xxx/xxx (the Asylum Procedures Regulation)1a and beneficiaries of international protection within the meaning of Article 2 of Regulation xxx/xxx (the Qualifications Regulation) 1b. / With regard to applicants for international protection or beneficiaries of international protection apprehended during joint police patrols as part of cross-border police operational cooperation, the relevant provisions of Regulation xx/xxx (the Asylum and M…

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 2: 2. The competent authorities of the Member State may, based on a finding that the third country national concerned has no right to stay on its territory, decide to immediately transfer the person to the Member State from which the person entered or sought to enter, provided that paragraph 1a does not apply and that police authorities from the receiving Member State are participating in the joint police patrols, in accordance with the procedure set out in Annex XII. This transfer is without prejudice to Article 6(3) of Directive 2008/115/EC.

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 2 a (new): 2a. A third-country national, apprehended in the vicintity of the internal borders, who is refused the right to stay in a Member State in accordance with this Article shall have the right to an effective remedy before a court or tribunal. Any appeal shall be conducted in accordance with national law. Member States shall ensure that written information on contact points able to provide information on representatives competent to act on behalf of the third-country national, in accordance with national law, is given to the third-country national, in a language that they understand or are reasonably expected to understand. The lodging of such an appeal shall not have suspensive effect.

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 3: 3. Where a Member State applies the procedure referred to in paragraph 2, the receiving Member State shall be required to take all measures necessary to receive the irregularly-staying third country national concerned in accordance with the procedures set out in Annex XII.

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 3 a (new): 3a. In the context of unannounced visits pursuant to Article 4(3) of Council Regulation (EU) 2022/9221a, the Commission shall pay particular attention to the implementation of the procedure laid down in this Article. / 1a Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis, and repealing Regulation (EU) No 1053/2013 (OJ L 160, 15.6.2022, p. 1).

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AddedArticle 1 – paragraph 1 – point 6, Article 23a – paragraph 4: 4. From [one year following the entry into force of the Regulation] and annually thereafter, Member States shall submit to the Commission the data recorded in accordance with point 3 of Annex XII, regarding the application of paragraphs 1, 2, 2a and 3.

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AddedArticle 1 – paragraph 1 – point 8, Article 25 – paragraph 1 – subparagraph 2 – point a: (a) an identified and immediate threat of acts of terrorism or of serious organised crime;

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AddedArticle 1 – paragraph 1 – point 8, Article 25 – paragraph 1 – subparagraph 2 – point c: (c) an exceptional situation in which there is an unexpected and sudden large-scale unauthorised movement of third-country nationals between Member States, putting at risk the overall functioning of the area without internal border control;

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AddedArticle 1 – paragraph 1 – point 8, Article 25 – paragraph 2 – subparagraph 1: Border controls may only be introduced or prolonged pursuant to Articles 25a and 28 where a Member State has established that such a measure is necessary and proportionate, taking into account the criteria referred to in Article 26(1), and, in case such controls are prolonged, also the risk assessment referred to in Article 26(2). Border controls may also be reintroduced in accordance with Article 29, taking into account the criteria referred to in Article 30.