Agreement on the Schengen Borders Code

The Belgian presidency of the Council of the EU and European Parliament negotiators today reached a provisional deal on amending the EU law that sets out the rules for the functioning of the Schengen area both at external and internal borders. The agreed changes, which will require approval and formal adoption by both institutions, will boost EU coordination and improve the toolbox available to Member States for challenges faced by the Schengen area.

Annelies Verlinden, Belgian Minister of Home Affairs, said: “Hassle-free movement across our internal borders and the security of our external borders are the two cornerstones of the Schengen area. Today’s agreement to overhaul the Schengen borders code will clarify and strengthen these two pillars.”

The update in particular clears up rules related to the reintroduction of border controls ensuring they remain a measure of last resort. They also offers solutions to situations where migrants are instrumentalised and provide the possibility to introduce common measures to harmonised travel restrictions in case of a public health emergency.

Fighting the instrumentalisation of migration flows

The amended Schengen Borders Code will offer member states new measures for managing the EU's external borders effectively in a situation where migrants are instrumentalised for political purposes. This includes limiting the number of border crossing points or reducing their opening hours.

Reintroduction of internal border controls

The agreed text clarifies and strengthens the framework for the reintroduction and prolongation of internal border controls. Member states may reintroduce controls as an exception when there is a serious threat to public policy or internal security. They will need to assess the necessity and proportionality of this reintroduction and assess whether the objectives pursued cannot be attained by other measures, including alternative measures.

According to the new rules, if threats to public policy or security are unforeseeable, controls can be introduced immediately with the Commission and Member States and the European Parliament being notified at the same time. Such controls can be reintroduced for a period of up to one month and be prolonged for further periods, for a maximum duration of up three months

Internal border controls for foreseeable threats, which have been notified to the Commission, the other Member States and the European Parliament before being reintroduced, may remain in place for a period up to six months. They may be extended for renewable periods of up to six months, with a maximum duration of two years. In major exceptional situations in respect to a persisting threat, internal border controls may be prolonged beyond two years, for a maximum of 6 additional months, renewable once (total duration of one year)

Promotion of alternative measures

Another update to the Schengen Borders Code on which the Presidency and the European Parliament agreed concerns the use of alternative measures to internal border controls.

The new code also introduces alternative measures to counter unauthorised movements of third-country nationals illegally staying in the Schengen area. A new procedure will allow a Member State to transfer illegally third-country nationals apprehended in the border area to the Member States from which they directly arrived. The apprehension should take place in the context of a bilateral cooperation framework.

External border measures in the event of a health crisis

Under the new Schengen Borders Code, the Council] can adopt a decision to allow temporary restrictions on travel at the external border if there isa large scale public health emergency. During the COVID-19 pandemic, the EU was only able to issue non-binding recommendations to member states.

The decision may also include health related travel restrictions such as testing, quarantine and self-isolation.

Certain categories of people – persons enjoying the right of free movement, long-term residents and beneficiaries of international protection – will be exempted from the entry restrictions.

Next steps

Today’s provisional agreement will be submitted to Member State’s representatives in the Council (Coreper) for confirmation. It will also have to be formally adopted by both institutions.

Background

The Schengen area covers over 4 million square kilometers, includes 27 European countries and allows more than 400 million people to travel freely between member countries without going through border controls.

Cooperation between the police forces, customs authorities and external border control authorities of the Schengen countries contributes to the security of the Schengen area.

The Schengen borders code, which this agreement between Council and EP will update, is the legal rulebook that provides for the absence of controls at internal borders and lays down rules for controls of persons at external Schengen borders.

The code allows member states to reintroduce controls at internal borders in exceptional circumstances which put the overall functioning of the Schengen area at risk.