Legal provisions of COM(2017)571 - Amendment of Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders

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dossier COM(2017)571 - Amendment of Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at ...
document COM(2017)571 EN
date September 27, 2017


Article 1 Regulation (EU) No 2016/399 is amended as follows: (1)        Article 25 is replaced by the following:

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OJ L 176, 10.7.1999, p. 36.

Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the

Agreement concluded by the Council of the European Union and the Republic of Iceland and the

Kingdom of Norway concerning the association of those two States with the implementation,

application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).

OJ L 53, 27.2.2008, p. 52.

Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the

Agreement concluded by the Council of the European Union and the Republic of Iceland and the

Kingdom of Norway concerning the association of those two States with the implementation,

application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).

Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European

Community, of the Agreement between the European Union, the European Community and the Swiss

Confederation on the Swiss Confederation's association with the implementation, application and

development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).

OJ L 160, 18.6.2011, p. 21.

Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union,

of the Protocol between the European Union, the European Community, the Swiss Confederation and

the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement

between the European Union, the European Community and the Swiss Confederation on the Swiss

Confederation’s association with the implementation, application and development of the Schengen

acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160,

18.6.2011, p. 19).

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"1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days, or for the foreseeable duration of the serious threat if its duration exceeds 30 days, but not exceeding six months. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat.

2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 27, 27a, 28 and 29. The criteria referred to, respectively, in Articles 26 and 30 shall be taken into account in each case where a decision on reintroduction of border control at internal borders is considered pursuant, respectively, to Article 27, 27a, 28 or 29.

3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 26 and in accordance with Article 27, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods corresponding to the foreseeable duration of the serious threat and not exceeding six months.

4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed one year.

In the exceptional cases referred to in Article 27a, the total period may be further extended by a maximum length of two years in accordance with that Article. Where there are exceptional circumstances as referred to in Article 29, the total period may be extended by a maximum length of two years, in accordance with paragraph 1 of that Article."

(2) Article 27 is amended as follows:

(i) In paragraph 1, a new letter (aa) is added as follows:

"(aa) a risk assessment assessing how long the identified threat is expected to persist and which sections of the internal borders are affected, demonstrating that the prolongation of border control is a last resort measure and explaining how border control would help address the identified threat. Where border control has already been reintroduced for more than six months, the risk assessment shall also explain how the previous reintroduction of border control has contributed to remedying the identified threat.

The risk assessment shall also contain a detailed report of the coordination which took place between the Member State concerned and the Member State or Member States with which it shares internal borders at which border control has been performed. The Commission shall share the risk assessment with the European Border and Coast Guard Agency and Europol, as appropriate." (ii) In paragraph 1, letter (e) is replaced as follows:

"(e) where appropriate, the measures to be taken by the other Member States as agreed prior to the temporary reintroduction of border control at internal borders concerned." (iii) The last sentence in paragraph 1 is replaced by the following:

"Where necessary, the Commission may request additional information from the Member State(s) concerned, including on the cooperation with the Member States affected by the planned prolongation of border control at internal borders as well as additional information needed to assess whether this is a last resort measure."

(iv) Paragraph 4 is replaced by the following:

"4. Following notification by a Member State under paragraph 1 and with a view to

consultation provided for in paragraph 5, the Commission or any other Member State

may, without prejudice to Article 72 TFEU, issue an opinion.

Where the Commission has concerns as regards the necessity or proportionality of the

planned reintroduction of border control at internal borders or where it considers that

a consultation on some aspects of the notification would be appropriate, it shall issue

an opinion to that effect.

Where border control at internal borders has already been reintroduced for six

months, the Commission shall issue an opinion.

(v) Paragraph 5 is replaced by the following:

"The information referred to in paragraph 1 and any Commission or Member State opinion referred to in paragraph 4 shall be the subject of a consultation led by the Commission. Where appropriate, the consultation shall include joint meetings between the Member State planning to reintroduce border control at internal borders, the other Member States, especially those directly affected by such measures and the relevant Agencies. The proportionality of the intended measures, the identified threat to public policy or internal security as well as the ways of ensuring implementation of the mutual cooperation between the Member States shall be examined. The Member State planning to reintroduce or prolong border control at internal borders shall take the utmost account of the results of such consultation when carrying out border controls.

(3) A new Article 27a is added:

Specific procedure where the serious threat to public policy or internal security exceeds

one year

"1. In exceptional cases, where the Member State is confronted with the same serious threat to public policy or internal security beyond the period referred to in Article 25(4) first sentence, and where commensurate exceptional national measures are also taken within the territory to address this threat, the border control as temporarily reintroduced to respond to that threat may be further prolonged in accordance with this Article.

2. At the latest six weeks before the expiry of the period referred to in Article 25(4) first sentence, the Member State shall notify the other Member States and the Commission that it seeks a further prolongation in accordance with the specific procedure laid down in this Article. The notification shall contain the information required in Article 27(1)(a) to (e). Article 27 paragraphs 2 and 3 shall apply.

3. The Commission shall issue an opinion.

4. The Council, taking due account of the opinion of the Commission, may recommend that the Member State decide to further prolong border control at internal borders for a period of up to six months. That period may be prolonged, no more than three times, for a further period of up to six months. In its

recommendation, the Council shall at least indicate the information referred to in Article 27(1) (a) to (e). Where appropriate, it shall determine the conditions for cooperation between the Member States concerned."

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.