The European Council has adopted a new general approach on the reform of the Schengen borders code. This was carried out as part of the French presidency’s bid to reform and strengthen the Schengen area in the face of new challenges.

This reform:

• Offers new tools for combating the instrumentalisation of migrant flows and establishes a new legal framework for external borders measures in the event of a health crisis, based on the experience of recent events to do with the COVID-19 pandemic;
• Updates the legal framework for the reintroduction of internal border controls in order to safeguard free movement, while responding to persistent threats;
• Introduces alternative control actions.

The definition of instrumentalisation of migrants given in the text is as follows: a situation in which a third country or non-state actor encourages or facilitates the movement of third-country nationals to the external borders of the EU or to a member state with the aim of destabilising them. The reform introduces new measures to combat this phenomenon, such as limiting the number of crossing points at the external border and/or their opening hours, and increasing border control.

External border measures in case of a health crisis

The text provides for binding minimum standards on temporary travel restrictions at external borders to be rapidly put in place if public health is at risk. This will compliment tools currently available which were applied during the COVID-19 pandemic, and which are based on non-binding recommendations.

The binding implementing regulation to be adopted by the European Council in these situations will include minimum restrictions. Member States will have the possibility to apply stricter restrictions, if deemed necessary.

Reintroduction of internal border controls

The text establishes more structured procedures for the reintroduction of internal border controls, with greater guarantees. It acknowledges a recent ruling of the EU Court of Justice which confirmed the principle of freedom of movement within the Schengen area, while specifying the conditions for the reintroduction of internal border controls. In this sense, it offers possible actions against persistent threats in public policy and internal security.

If internal border controls remain necessary beyond two years and six months, the Member State concerned must notify the Commission of its intention to further prolong internal border controls. The notification must include a justification for the need, and specify the date on which it expects to lift the controls. The Commission will then issue a recommendation regarding the date and the principles of necessity and proportionality, which the Member State shall take into account.

Promotion of alternative measures

The text updates the Schengen borders code by providing alternative measures to internal border controls, specifically by proposing a more effective framework for police checks in the border regions of member states.

The text also introduces a new procedure for dealing with unauthorised movements of irregular migrants within the EU. In the context of a bilateral cooperation framework based on voluntary action by the member states concerned, this procedure will allow a member state to return third-country nationals apprehended in the border area and illegally present on its territory to the member state from which they originated, in the context of operational cross-border police cooperation.

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