The Council has given its final approval to a new Schengen Borders Code, the EU’s rule book dealing with the management of internal and external borders, as well as rules governing border control and people crossing the external borders of the European Union. The reform is essential to make the Schengen area more resilient to current and future crises at its external borders. It also ensures that people living and travelling in the Union can fully enjoy the benefits of travel without crossing internal borders.
The regulation introduces the possibility of adopting measures at Union level restricting the access of third-country nationals to the EU in the event of a large-scale public health emergency. It also puts in place a transfer procedure that will help to deal with the secondary movement of migrants (from one Member State to another) and offers solutions to situations of instrumentalisation of migration.
Travelling in the Schengen area without border controls is considered one of the EU’s major achievements. With the latest vote, member states have been given tools to maintain border-free travel within the Schengen area, while securing external borders, addressing irregular migration and public health risks.
In the event of a large-scale public health emergency, the new rules grant the possibility, following a Council decision, to establish harmonised temporary travel restrictions at the EU’s external border. During the COVID-19 pandemic, the EU was only able to issue non-binding recommendations regarding travel restrictions to Member States.
As well as travel restrictions, the Council can also impose testing, quarantine and self-isolation and other health-related measures for non-EU citizens entering the EU.
To combat the instrumentalisation of migration, the amended Schengen Borders Code will offer Member States the possibility of limiting the number of border-crossing points or reducing their opening hours and will allow for improved border surveillance measures.
The revised Schengen Borders Code clarifies the existing framework for the reintroduction and extension of internal border controls, which is possible when there is a serious threat to public order or internal security. Member States will have to assess the necessity and proportionality of this decision and evaluate whether the objectives pursued cannot be achieved by other means.
In addition, the revised regulation establishes the maximum duration for which these controls may be maintained at internal borders. Internal border controls that have been notified to the Commission, the Member States and the European Parliament before being reintroduced may remain in force for a maximum of two years. In major exceptional situations, internal border controls may be extended for an additional 6 months, renewable once for a total duration of one year.
The possibility of using alternative measures, which normally consist of police checks and cross-border cooperation, should encourage Member States to substantially limit the reintroduction of temporary border controls. These measures must be clearly distinct from systemic controls of people at external borders.
In addition, a new transfer procedure will allow a Member State to transfer third-country nationals arrested in the border area and staying illegally on its territory to the Member State from which they arrived directly. The detention should take place in the context of a bilateral cooperation framework.
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