Changes from report parliamentary committee draft to plenary report

EXPLANATORY STATEMENT

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The Schengen area is one of the Union's greatest achievements, a tangible and cherished achievement at the very heart of the EU project, allowing unrestricted travel for more than 400 million people and unique across the world, which has been in place for over 25 years.

Unfortunately, this area of free movement, without internal border controls, has been at risk for several years. There are many reasons given for the increasing, and increasingly permanent, use of internal border controls within the Schengen area affecting primarily persons: the threat of terrorism, the public health risk linked to pandemics, even the movement of persons across borders itself. The thread connecting such reasons is that they have served as a pretext for Member States to turn inwards.

The European Commission has proposed an amended version of the Schengen Borders Code with the aim of strengthening the Schengen area and returning to a fullyfunctioning area without internal border controls. Unfortunately, the approach chosen by the Commission has been to accept those very reasons given for increasing border controls and limiting freedom of movement. Creating new grounds for justifying the introduction of internal border controls or permitting more checks that will look like, and feel like, border control does not seem to match with the aim of the EU Treaties to offer EU citizens an area of freedom, security and justice without internal frontiers. The Rapporteur has decided to focus on primary EU law when proposing amendments to this proposal, seeking to defend the very principles of the Schengen area as they are set out in the Treaties and the Charter of Fundamental Rights, in particular in Article 3 TEU, in Article 67(2) TFEU, and in Article 77(2)(e) TFEU.

As regards the provisions related to instrumentalisation, the Rapporteur prefers to remove them from the text since, on the one hand, they serve a geopolitical goal with limited relevance for the rules governing the good functioning of the Schengen area, and, on the other hand, the Commission has made a separate, specific proposal for a Regulation on this subject, which should address all elements linked to that concept.

Change 78

RemovedFurthermore, and in this same context, the Rapporteur considers - as set out in the recitals of the current Schengen Borders Code - that migration does not, per se, pose “a serious threat to internal security”. As such, she does not agree with the introduction of the concept of large-scale unauthorised movements of third country nationals as a Schengen concept, as proposed by the Commission. She has proposed to delete this concept.

AddedRegarding the amendments to the Return directive, the Rapporteur prefers also to suggest that they do not belong in the Schengen Borders Code, based on the principle that they are not consistent with a legal basis that requires the absence of any controls on persons, whatever their nationality, when crossing internal borders. It cannot be the role of the Schengen Borders Code to resolve problems that have arisen in the stalled reform of the EU’s asylum and migration policy. Such provisions are clearly contrary to the spirit of the Schengen Area without internal border control. Moreover, the standstill clause in the Return Directive was intended to ensure that the EU moves to a more harmonised approach. The Rapporteur does not want to move backwards in that respect, by encouraging more bilateral agreements within the Schengen Area that serve only to bi-pass EU rules.

RemovedRegarding the new procedure for internal Schengen returns (Article 23a), and the amendments to the Return directive, the Rapporteur prefers also to suggest that they do not belong in the Schengen Borders Code, based on the principle that they are not consistent with a legal basis that requires the absence of any controls on persons, whatever their nationality, when crossing internal borders. It cannot be the role of the Schengen Borders Code to resolve problems that have arisen in the stalled reform of the EU’s asylum and migration policy. Such provisions are clearly contrary to the spirit of the Schengen Area without internal border control. Moreover, the standstill clause in the Return Directive was intended to ensure that the EU moves to a more harmonised approach. The Rapporteur does not want to move backwards in that respect, by encouraging more bilateral agreements within the Schengen Area that serve only to bi-pass EU rules.

More positively, on the Commission’s suggestions with regard to handling pandemic situations and public health emergencies, the Rapporteur broadly supports the European Commission's approach, but given the importance of the decisions that will be taken - at EU level - in this area, it is important that European Parliament is involved in that process.

Additionally, regarding one of the key elements of this revision, related to the time limits for reintroducing internal border controls, the Rapporteur has been guided by the ruling of the Grand Chamber of the Court of Justice of the European Union in Joined Cases NW v Landespolizeidirektion Steiermark (C-368/20), Bezirkshauptmannschaft Leibnitz (C-369/20.

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ChangedThe draft report contains strict time limits on the reintroduction of internal border controls for Member States, and clear provisions indicating how long they can be maintained.. Viewing the Commission’s proposal as too open-ended in this regard, the Rapporteur has therefore proposed time limits of:maintained.

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Removed(i) 1 month, renewable up to 3 months for unforeseeable threats;

AddedIn its proposal, the Commission decided to introduce new provisions governing a serious threat to public policy or internal security which would put at risk the overall functioning of the area without internal border controls, allowing for a Council Decision covering the reintroduction of internal border control in several or more Member States at the same time. The Rapporteur can accept such a mechanism, but believes it should be tightly regulated. The reintroduction of border controls at EU-level should be possible for periods of 6 months, renewable up to a maximum of 2 years.

Removed(ii) 3 months, renewable for periods of 3 months up to maximum of 1 year for foreseeable threats; and that

Removed(iii) where a MS intends to renew internal border control after 3 months, it is required to provide a risk assessment;

Removed(iv) where a MS intends to renew internal border control for a period beyond 6 months, the Commission would then be obliged to give its opinion on the necessity and proportionality of such internal border control.

RemovedIn its proposal, the Commission decided to introduce new provisions governing a serious threat to public policy or internal security which would put at risk the overall functioning of the area without internal border controls, allowing for a Council Decision covering the reintroduction of internal border control in several or more Member States at the same time. The Rapporteur can accept such a mechanism, but believes it should be tightly regulated. The reintroduction of border controls at EU-level should be possible for periods of 6 months, renewable up to a maximum of 2 years. This requires a proposal from the Commission for a Council Decision.

RemovedBefore adopting its Decision, the Council should first consult the European Parliament. The procedure should be the same for renewal of internal border control under this mechanism.

To conclude, the last ten years have shown that it is politically much easier for national politicians to take a decision to reintroduce border controls, than it is for them later to take a decision to lift those internal border controls. The European legislator should not provide more tools with which national politicians can justify internal border controls. We must get back to Schengen not back to pre-Schengen.