(1)

In accordance with Article 3(2) of the Treaty on European Union (TEU), the Union comprises an area of freedom, security and justice that is free of internal border control, in which the free movement of persons is ensured in conjunction with appropriate measures regarding external border control, asylum, immigration and the prevention and combating of crime.

(2)

The creation of an area in which the free movement of persons across internal borders is ensured is one of the main achievements of the Union. It is important that the normal functioning and strengthening of such an area, which is based on trust and solidarity, is a common objective of the Union and the Member States which have agreed to take part in it. In that respect, the temporary reintroduction of border control at internal borders should be exceptional and used only as a last resort, where appropriate subject to consultation and cooperation between the Member States concerned and the Commission as guardian of the Treaties.

(3)

Regulation (EU) 2016/399 of the European Parliament and of the Council (Schengen Borders Code) (4) lays down rules governing the movement of persons to and from the area without internal border control (the ‘Schengen Area’) as well as between the Member States that participate in the Schengen Area.

(4)

In recent years, the Schengen area has been subject to unprecedented challenges, which, by their nature, were not confined to the territory of any single Member State. Such challenges underscored the fact that the preservation of public policy and security in the Schengen area is a shared responsibility requiring joined and coordinated action between Member States and at Union level. They also highlighted gaps in the existing rules governing the functioning of the Schengen area both at external and internal borders and the need to create a stronger and more robust framework allowing for a more effective response to challenges faced by the Schengen area in order to strengthen mutual trust and solidarity and to ensure the absence of any controls on persons, whatever their nationality, when crossing internal borders, while enabling Member States to provide an effective response to challenges they face.

(5)

Border control at external borders is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control and the Union as a whole. Member States are required to ensure high standards in the management of their external borders, including through enhanced cooperation between border guards, police, customs and other relevant authorities. The Union provides active support through the provision of financing support by the relevant Union agencies and management of the Schengen Evaluation and Monitoring Mechanism established by Council Regulation (EU) 2022/922 (5). The rules applicable to external borders need to be reinforced in order to better respond to new challenges that have recently emerged at the external borders.

(6)

European integrated border management is based on the four-tier access control model, set out in Regulation (EU) 2019/1896 of the European Parliament and of the Council (6). Border control, including measures to facilitate legitimate border crossings, forms a key part of the European integrated border management. In order to prevent and detect cross-border crime at the external borders, in particular migrant smuggling, trafficking in human beings, and terrorism, Member States together with the European Border and Coast Guard Agency, established by Regulation (EU) 2019/1896, should implement European integrated border management, based on the four-tier access control model.

(7)

The COVID-19 pandemic has shown that threats to public health can require uniform rules concerning travel restrictions for travel into the Union by third-country nationals. The adoption of inconsistent and divergent measures at the external borders to address such threats negatively affects the functioning of the entire Schengen area, reduces predictability for third-country travellers and people-to-people contacts with third countries. To prepare the Schengen area for future challenges of a scale comparable to the COVID-19 pandemic, a new mechanism should be established which would allow for the adoption and lifting, in a timely manner, of coordinated measures at Union level. The new mechanism at the external border should be applied in the event of a large-scale public health emergency with a serious cross-border threat to health, recognised by the Commission at Union level without prejudice to Regulation (EU) 2022/2371 of the European Parliament and of the Council (7), taking into account information from competent national authorities.

(8)

In the event of a large-scale public health emergency, the mechanism should provide for the adoption of an implementing Regulation setting out temporary restrictions on travel, including restrictions on entry and minimum temporary health-related restrictions, and the conditions for lifting them. In view of the politically sensitive nature of such restrictions which concern the right to enter the territory of Member States, implementing powers should be conferred on the Council to adopt such an implementing Regulation (the ‘implementing Regulation’), acting on a proposal from the Commission.

(9)

Importantly, in line with the applicable obligations under Union and international law, Union citizens and third-country nationals who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens, as well as their respective family members should always be permitted to enter the Union. Residents in the Union should also always be permitted to return to the Union, and in particular to the Member State in which they legally reside. The implementing Regulation should lay down minimum temporary health-related restrictions to which those persons could be subject. As regards third-country nationals legally residing in Ireland, Member States should, on a reciprocal basis, allow those residents to return to Ireland by transiting through the territory of the Member States. Ireland is invited to align its national policy with the restrictions on travel to the European Union. The implementing Regulation should contain all necessary elements to ensure that restrictions on travel are effective, targeted, non-discriminatory and proportionate to the evolving epidemiological situation. It should identify, where required by the nature of the large-scale public health emergency, the categories of persons undertaking essential travel listed in Annex XI, part B, to be exempted from restrictions on entry and lay down the conditions under which it should be possible, exceptionally, for travel restrictions to be imposed on those travellers. In addition, or alternatively, the implementing Regulation should determine any geographical areas or third countries from which it should be possible to subject travel to specific measures and establish a procedure for the periodic review of the situation and of the travel restrictions, based on an objective methodology and objective criteria applicable to that procedure, including, in particular, the epidemiological situation. The implementing Regulation could specify the conditions under which travel might be permitted such as testing, quarantine, self-isolation or any other appropriate measures, such as a requirement to fill in a passenger locator form or to use other contact tracing tool, and having regard, in particular, to any Union systems developed to facilitate travel under safe conditions, such as digital certification systems. Where appropriate, the implementing Regulation could also set up a mechanism allowing additional measures to be taken in the event the epidemiological situation dramatically worsens in one or more geographical areas.

(10)

The effectiveness of restrictions on travel to the Union is premised on applying uniform rules to third countries and third-country nationals. The application of uniform rules by means of the implementing Regulation should ensure the protection of public health and thus preserve the functioning of the area without internal border controls. Member States could adopt stricter temporary health and other related restrictions than those laid down in the implementing Regulation provided that such restrictions do not have a negative impact on the functioning of the area without internal border control. In addition, Member States could adopt restrictions on travel in the absence of an implementing Regulation. The implementing Regulation should take into account the specific situation of the Overseas Countries or Territories referred to in Article 355(2) of the Treaty on the Functioning of the European Union (TFEU) and listed in Annex II thereto.

(11)

Transit within the Union for Union citizens and their family members, as well as for certain categories of essential travellers should not be subject to temporary health-related restrictions on travel to their final destination. Any temporary health-related restrictions to be applied, should be applied upon arrival at the final destination.

(12)

It is also necessary to reinforce the rules and safeguards in Union law in order to allow Member States to act swiftly to counter situations of instrumentalisation. Such instrumentalisation should be understood within the meaning of Article 1(4), point (b), first sentence, of Regulation (EU) 2024/1359 of the European Parliament and of the Council (8). Situations in which hostile non-state actors are involved in organised crime, in particular migrant smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State. Furthermore, humanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State.

(13)

As regards Cyprus, Council Regulation (EC) No 866/2004 (9) provides for specific rules that apply to the line between the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus exercises effective control and those areas in which it does not exercise effective control. Although that line does not constitute an external border, a situation where a third-country or hostile non-state actor encourages or facilitates the movement of third-country nationals to cross that line is considered as instrumentalisation.

(14)

In particular, in a situation of instrumentalisation, it should, where necessary, be possible for the Member State concerned to limit border traffic to the minimum by temporarily closing some border crossing points, while guaranteeing genuine and effective access to international protection procedures. Any such decision should take into account whether the European Council has acknowledged that the Union or one or more of its Member States are facing a situation of instrumentalisation of migrants. Furthermore, any such limitations should take full account of the rights of Union citizens, third-country nationals who are beneficiaries of the right of free movement pursuant an international agreement and third-country nationals who are long-term residents under national or Union law or are holders of long-stay visas, as well as their respective family members. Such limitations should also be applied in a manner that ensures that obligations related to access to international protection, in particular the principle of non-refoulement, are respected.

(15)

The European Border and Coast Guard Agency assists Member States with implementing the operational aspects of external border management, including information exchange, the provision of equipment, capacity building and training to national border guards, targeted information and risk analysis, the deployment of the European Border and Coast Guard standing corps, as well as assistance in search and rescue operations for persons in distress at sea, that are launched and carried out in accordance with Regulation (EU) No 656/2014 of the European Parliament and of the Council (10). The European Border and Coast Guard Agency’s new mandate offers considerable opportunities for Member States to be assisted in border control tasks, including, inter alia, with regard to screening and in return operations.

(16)

Technical means to prevent unauthorised crossings of the border could include modern technologies such as drones and motion sensors, as well as mobile units, and, where appropriate, all types of stationary and mobile infrastructure. The use of such technical means, in particular, technologies capable of collecting personal data, needs to be based on and exercised in accordance with clearly defined provisions of national law.

(17)

The power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission to supplement Regulation (EU) 2016/399 in respect of addition to Annex XI, Part B, of further categories of persons undertaking essential travel and in respect of additional measures governing surveillance, including the development of common minimum standards for border surveillance. Those common minimum standards should take into account the type of borders, i.e. land, sea or air borders, the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 and other relevant factors, such as geographical particularities. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (11). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(18)

In an area without internal border control, persons, whatever their nationality, should be able to move freely and in security between Member States. In that regard, it should be clarified that the prohibition of border controls at internal borders does not affect the competence of Member States to carry out checks on their territory including in their border areas for purposes other than border control. It should, in particular, be clarified that competent national authorities, including health or law enforcement authorities, remain, in principle entitled to exercise public powers under national law provided that the effect of those powers is not equivalent to border checks.

(19)

While the prohibition of border control at internal borders also extends to checks having equivalent effect, checks by competent authorities of the Member States should not be considered equivalent to border checks where they do not have border control as an objective, where they are based on general police information and experience or public health information regarding possible threats to public security or public policy, where they aim in particular to combat cross-border crime, reduce illegal immigration or contain the spread of an infectious disease with epidemic potential as identified by the European Centre for Disease Control, where they are devised and executed in a manner clearly distinct from systematic checks on persons at the borders, and where they are conducted at transport hubs, such as ports, train or bus stations and airports as well as freight terminals or directly on board of passenger transport services, and where they are based on a risk assessment.

(20)

The reduction of illegal immigration and of cross-border crime linked to it, such as trafficking in human beings, migrant smuggling and document fraud and other forms of cross-border crime, could encompass measures allowing for the verification of the identity, nationality and residence status of persons provided that such verifications are non-systematic and carried out on the basis of a risk assessment.

(21)

The use of modern technologies to monitor traffic flows, in particular on motorways and other important roads determined by the Member States, can be instrumental in addressing threats to public policy or internal security. The prohibition of border control at internal borders should not be understood as preventing the lawful exercise of police or other public powers to carry out checks in the internal border areas. This includes checks that entail the use of monitoring and surveillance technologies which are generally used in the territory or that are based on a risk assessment for the purpose of protecting internal security.

(22)

In order to allow for such technologies to be effective, it should be possible to apply proportionate speed limits at road crossing-points.

(23)

In the exercise of police or other public powers by the competent authorities of the Member States in their territory, in particular in their border areas, it is important that the exercise of those powers does not have a disproportionate impact on the fluid traffic flow at road crossing-points at internal borders, in particular, by leading to excessive waiting times. In a spirit of dialogue and cooperation, it is important that Member States inform the neighbouring Member State of their actions, in particular when the action is expected to have a more significant effect on cross-border traffic.

(24)

The prohibition of border control at internal borders should not restrict the carrying out of checks provided for under Union law. The rules provided for in this Regulation, do not therefore, affect the applicable rules regarding the carrying out of checks on passenger data against relevant databases in advance of arrival.

(25)

It is necessary to ensure that checks carried out by Member States in exercise of national competences remain fully consistent with an area that is free of internal border control. In accordance with the case law of the Court of Justice of the European Union, the more extensive the indications are that checks conducted by Member States at their border areas have an effect equivalent to border control, having regard to the objective of such checks, their territorial scope and possible differences compared to checks carried out in the remainder of the territory of the Member State concerned, the greater the need for strict and detailed rules and limitations laying down the conditions for the exercise, by the Member States, of their police powers in a border area.

(26)

In order to strengthen the functioning of the Schengen area, Member States should be able to take additional measures to counter irregular movements between Member States. Where national law enforcement authorities of a Member State apprehend third-country nationals with no right to stay in that Member State, in border areas during checks conducted by the competent authorities within a bilateral cooperation framework, which could include, in particular, joint police patrols, it should be possible for those authorities to transfer the third-country nationals to the Member State from which they entered the transferring Member State provided that the third country nationals have no right to stay in the transferring Member State. The Member State from where the third-country nationals came directly should in turn be required to receive the apprehended third-country nationals.

(27)

The transfer procedure should not apply to third-country nationals who are holders of Union long-term residence permits and their family members in accordance with Council Directive 2003/109/EC (12), third-country nationals that are family members of Union citizens that enjoy the right to free movement in accordance with Directive 2004/38/EC of the European Parliament and of the Council (13), third-country nationals who are holders of a valid long-stay visa and their family members in accordance with national law, third-country nationals who are holders of a valid short-stay visa, third-country nationals who are entitled to visa-free travel within the Schengen area for a 90-day period in any 180-day period, in so far as they have not exceeded that 90-day period, applicants, as defined in Article 3, point 13 of Regulation (EU) 2024/1348 of the European Parliament and of the Council (14) and beneficiaries of international protection, as defined in Article 3, point 4 of Regulation (EU) 2024/1347 of the European Parliament and of the Council (15). With regard to applicants apprehended in the framework of bilateral cooperation, the relevant provisions of Regulation (EU) 2024/1351 of the European Parliament and of the Council (16) should apply.

(28)

The procedure by which a Member State should be able to transfer apprehended third- country nationals with no right to stay to a Member State from where the person came directly should take place swiftly but be subject to safeguards and be carried out in full respect of fundamental rights and the principle of non-discrimination enshrined in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), to prevent racial profiling. It should be possible for the authorities to carry out a verification of relevant information immediately available to the authorities concerning the movements of the persons concerned. Such information could include objective elements that would allow the authorities to conclude that the person had recently travelled from another Member State, such as the possession of documents, including receipts or invoices, evidencing recent travel from another Member State. Third-country nationals that are subject to the transfer procedure should be provided with a reasoned decision in writing. While the decision should be immediately enforceable, the third-country national should be afforded an effective remedy to appeal against or seek review of the transfer decision. That remedy should not have suspensive effect.

(29)

The transfer procedure provided for under this Regulation is optional and does not affect the existing possibility for Member States to return illegally staying third-country nationals in accordance with bilateral agreements or arrangements referred to in Article 6(3) of Directive 2008/115/EC of the European Parliament and of the Council (17) (the ‘Return Directive’), where such persons are detected outside of border areas.

(30)

When making use of the transfer procedure provided for under this Regulation, Member States should establish practical arrangements under their bilateral cooperation frameworks, including with a view to, as a rule, avoiding the use of that transfer procedure, in particular on the sections of the internal borders where control has been temporarily reintroduced or prolonged.

(31)

Where a third-country national who has been subject to a transfer decision is brought to the border by a carrier, the competent authority are able in accordance with national law, to make arrangements with the carrier so that the third-country national is transferred without delay to the receiving Member State.

(32)

In the context of unannounced visits pursuant to Article 4(3) of Regulation (EU) 2022/922, it is important that the Commission pay particular attention to the implementation of the transfer procedure.

(33)

In an area where persons are able to move freely, without internal frontiers, which constitutes one of the main achievements of the Union in accordance with Article 3(2) TEU, the reintroduction of border control at internal borders should remain an exception and should only be a measure of last resort. Exceptions to and derogations from the principle of the free movement of persons are to be interpreted strictly. In order not to compromise the very principle that there is to be no internal border control, as enshrined in Article 3(2) TEU and reiterated in Article 67(2) TFEU, the reintroduction of border control at internal borders on account of the same threat should be for clearly defined periods in accordance with this Regulation.

(34)

In exceptional cases, addressing threats to the Schengen area might, as a last resort, require the adoption, by the Member States, of measures at the internal borders. As the free movement of persons is affected by the temporary reintroduction of border control at internal borders, any decision to reintroduce such border control should be taken in accordance with commonly agreed criteria and should be duly notified to the Commission, the Parliament and the Council or be recommended by a Union institution. Member States remain competent to determine the need for the temporary reintroduction or prolongation of border control. Under the existing rules, the reintroduction of border control at internal borders is provided for in circumstances where a serious threat to internal security or public policy manifests itself in a single Member State for a limited period of time. In particular, terrorism and organised crime, large-scale public health emergencies or large scale or high profile international events such as sporting, trade or political events can amount to a serious threat to public policy or internal security.

(35)

Furthermore, a serious threat to public policy or internal security could also result from sudden large- scale unauthorised movements of third-country nationals between the Member States, where that creates a situation putting a substantial strain on the overall resources and capacities of well-prepared competent authorities and is likely to put at risk the overall functioning of the area without internal border control, and where the other means provided for under this Regulation are not sufficient to address those inflows and movements. In this context, Member States should be able to rely on objective and quantified reports on unauthorised movements whenever available, in particular, when produced on a regular basis by the relevant Union agencies in line with their respective mandates.

(36)

The COVID-19 pandemic demonstrated the need for a Union-wide mechanism that would apply to situations where, within the Schengen area, a large-scale public health emergency affects several Member States at the same time, putting at risk the well-functioning of the Schengen area. The new Schengen area safeguarding mechanism should permit coordinated solutions to protect the interests of persons entitled to benefit from the area without internal border control, by maximising the effectiveness of the measures taken while minimising their negative side-effects.

(37)

The new Schengen area safeguard mechanism should allow the Council to adopt, upon a proposal by the Commission, a decision authorising the temporary reintroduction or prolongation of border control at internal borders, where a large-scale public health emergency has been recognised at Union level. Given the politically sensitive nature of such a decision which regulates the possibility for Member States to reintroduce or prolong border control at internal borders in particular circumstances, implementing powers to adopt a decision should be conferred on the Council, acting on a proposal from the Commission. That decision should include any appropriate mitigating measures.

(38)

The establishment of the new Schengen area safeguard mechanism should not affect the right of Member States to have prior recourse to unilateral measures in accordance with this Regulation, where the situation so requires. However, once adopted, the Union measure should become the single basis for a coordinated response to the threat identified.

(39)

In order to ensure compliance with the principle of proportionality, the decision of the Council should be adopted for a limited period of time of up to six months that may be prolonged subject to regular review upon a proposal from the Commission, as long as the large-scale public health emergency persists. The initial decision should include an assessment of the expected impact of the measures adopted, including its adverse side-effects, with a view to determining whether border controls at internal borders are justified or whether less restrictive measures could be applied in their place in an effective manner. Subsequent decisions should take account of the evolution of the threat to public health. The Member States should immediately notify the European Parliament, the Commission and the other Member States of the reintroduction of border control at internal borders in accordance with the decision of the Council.

(40)

The reintroduction of border control at internal borders, whether on the basis of unilateral decisions of the Member States or at a Union level, has serious implications for the functioning of the Schengen area and the right to free movement. In order to ensure that any decision to reintroduce border control is taken only where necessary, as a measure of last resort, the decision on temporary reintroduction or prolongation of border control should be based on common criteria, and be strictly necessary and proportionate.

(41)

In accordance with the case-law of the Court of Justice of the European Union, a derogation from the fundamental principle of free movement of persons must be interpreted strictly and the concept of public policy presupposes the existence of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

(42)

In the first instance, Member States should assess the appropriateness of temporary border control at internal borders having regard to the nature of the serious threat identified as well as the appropriateness of alternative measures to pursue the same objectives as border control at internal borders, such as proportionate checks as carried out in the exercise of police or other public powers or through forms of police cooperation as provided for under Union law, including the possibility to use the transfer procedure, or common measures regarding temporary travel restrictions. In this context, the Member States should pay particular attention to and assess the likely impact of border control at internal borders on the movement of persons within the area without internal border control and the functioning of the cross-border regions. This assessment should be part of the notification that Member States are required to transmit to the Commission, the Parliament and the Council. In the case of prolongation of border control at internal borders for foreseeable events beyond an initial period of six months, the Member State should also carry out a risk assessment. That risk assessment should include details on the scale and anticipated evolution of the identified serious threat, information on how long that serious threat is expected to persist and which sections of the internal borders are affected, information on coordination measures with other Member States impacted by such measures and the measures that the Member State concerned has taken and intends to take to alleviate the identified serious threat, with a view to lifting border control at internal borders in order to maintain the principle of free movement.

(43)

In order to limit harmful consequences resulting from the reintroduction of border control at internal borders, any decision to reintroduce border control at internal borders should be accompanied by mitigating measures. Such measures should include measures to assure a smooth operation of transit of goods and transport personnel and seafarers by the establishment of ‘green lanes’. In addition, and to take account of the need to ensure the movement of persons whose activities may be essential for preserving the supply chain or the provision of essential services, Member States could also apply the existing guidelines on cross-border workers set out in the Communication from the Commission of 30 March 2020 entitled ‘Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak’. The rules for the reintroduction of border control at internal borders should, therefore, take account of the guidelines and recommendations adopted throughout the COVID-19 pandemic as a solid safety net for the Single Market, for the purpose of assuring that they are applied by the Member States as mitigating measures during reintroduced border control at internal borders. Measures should in particular be identified with a view to ensuring the uninterrupted functioning of the Single Market and safeguarding the interests of cross-border regions and of ‘twin cities’ including for instance authorisations or derogations for the inhabitants of cross-border regions.

(44)

The notification to be provided by the Member States should be decisive when assessing compliance with the criteria and conditions for a temporary reintroduction of border control at internal borders. In order to ensure the proper monitoring of border control that has been reintroduced at internal borders, and to improve the quality of the information it receives, the Commission should adopt an implementing act to establish a template for the notification of reintroduction of border control at internal borders. Member States should not be required to provide all the information in cases justified on public security grounds, taking into account the confidentiality of ongoing investigations. Member States should be entitled to classify all or parts of the information provided in the notification, without prejudice to the functioning of appropriate and secure channels.

(45)

In order to ensure that border control at internal borders is truly a last resort measure applied only for as long as necessary and in order to allow for assessing the necessity and proportionality of border control at internal borders to address foreseeable threats and to allow the Commission to assess that such controls are an exceptional measure, Member States should prepare a risk assessment to be submitted to the Commission when border control at internal borders is prolonged beyond an initial period of 6 months in response to foreseeable threats. The Member States must in particular, explain, the scale and evolution of the identified serious threat, including how long the identified serious threat is expected to persist and which sections of the internal borders may be affected, why alternative measures will not resolve the identified threat, as well as their coordination measures with the other Member States that are impacted or likely to be impacted by border control at internal borders.

(46)

The Commission should be entitled to request additional information based on the notification received, including on the risk assessment or cooperation and coordination measures with the Member States affected by the planned prolongation of border control at internal borders. Where the notification does not comply with the minimum requirements, the Commission should discuss the notification with the Member State concerned and request additional information or request that Member State to complete its initial notification.

(47)

At least once per year, the Commission should report to the European Parliament and to the Council jointly on the functioning of the area without internal border control (the ‘State of Schengen report’). The Commission should be able to also discuss that report separately with the European Parliament and the Council. The report should include a list of all decisions to reintroduce border control at internal borders taken during the relevant year, as well as the actions taken by the Commission with regard to border control reintroduced at internal borders. The report should pay particular attention to the border control that has been in place for longer than 12 months. It should also include an assessment of the necessity and proportionality of the reintroduction and prolongations of border control at internal borders in the period covered by that report as well as information on the trends within the area without internal border control as regards the unauthorised movements of third-country nationals, taking into account available information from the relevant Union agencies and data analysis from relevant information systems. The State of Schengen report should also cover the reporting obligations resulting from Article 20 of the Schengen Evaluation and Monitoring Mechanism.

(48)

The State of Schengen report should be accompanied by the report to be provided pursuant to Article 25 of Regulation (EU) 2022/922.

(49)

The mechanism for the temporary reintroduction of border control at internal borders in urgent situations or to address foreseeable threats should provide for a possibility, for the Commission to organise consultations between Member States. A consultation should be organised by the Commission where a Member State directly affected so requests. Relevant Union agencies should be involved in this process in order to share their expertise, where appropriate. Such consultations should look at the possibility of applying alternative measures, and if necessary practical arrangements for carrying out border control at internal borders and their duration. Where the Commission or a Member State has issued an opinion expressing concerns regarding the reintroduction of border control, such consultations should be mandatory.

(50)

The Commission and Member States should retain the possibility to express any concern as regards the necessity and proportionality of a decision of a Member State to reintroduce border control at internal borders for reason of urgency or to address a foreseeable threat. Where internal border control is reintroduced and prolonged for foreseeable threats for combined periods exceeding 12 months, the Commission should issue an opinion assessing the necessity and proportionality of such border control at internal borders. Where a Member State considers that there is a major exceptional situation justifying the continued need for border control at internal borders for a period exceeding 2 years, additional safeguards should be set in terms of risk assessment. The notification by the Member State concerned should include the measures it intends to adopt, in cooperation with other Member States where appropriate, enabling the threat to be addressed as well as a presentation of the means, actions, conditions and timeline considered with a view to lifting border control at internal borders as soon as possible in order for the principle of free movement to be maintained. The Commission should in such a case issue a new opinion. Such an opinion is without prejudice to the enforcement measures, including infringement actions, which the Commission, in its role as guardian of the Treaties, should be able to take at any time against any Member State for failure to comply with its obligations under Union law. Where an opinion is issued, the Commission should launch consultations with the Member States concerned. Although in the area without internal border control a serious threat to public policy or internal security in a Member State is not necessarily limited in time, in order to maintain the principle of free movement, it is necessary to limit the maximum duration of border control at internal borders based on the same serious threat, which should not exceed 2 years. In exceptional circumstances and under certain conditions Member States should be able to prolong border control at internal borders for two further periods of six months. In any event, border control at internal borders based on the same serious threat should not exceed 3 years in total.

(51)

In order to enable the ex post analysis of the decision on the temporary reintroduction of border control at internal borders, Member States should remain obliged to submit a report on the reintroduction of border control at internal borders to the European Parliament, the Council and the Commission once they lift that border control. Where the controls are kept in place for prolonged periods of time, another such report should be submitted after 12 months, and again 12 months thereafter if, exceptionally, controls are maintained. The report should outline, in particular, the initial and follow-up assessment of the need for border control at internal borders and the respect of the criteria for reintroduction of that border control. The Commission should adopt an implementing act to establish a template for such reports and make the template available online.

(52)

When implementing this Regulation, Member States are not to discriminate against persons on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(53)

The competent authorities referred to in this Regulation should, in all activities undertaken by them under this Regulation, including when using their powers to carry out checks, fully respect the rules on data protection under Union law. Regulation (EU) 2016/679 of the European Parliament and of the Council (18) or Directive (EU) 2016/680 of the European Parliament and of the Council (19) apply to the processing of personal data by competent national authorities for the purposes of this Regulation, in their respective field of application.

(54)

Since the objective of this Regulation, namely to strengthen the functioning of the Schengen area, cannot be sufficiently achieved by Member States acting alone, as an amendment of the common rules established at Union level is necessary, but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(55)

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(56)

This Regulation constitutes a development of the provisions of the Schengen acquis, in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (20); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(57)

As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (21), which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC (22).

(58)

As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning 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 (23) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (24).

(59)

As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning 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 (25) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (26).

(60)

This Regulation is without prejudice to the application of Directive 2004/38/EC.

(61)

This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter.

(62)

Regulation (EU) 2016/399 should therefore be amended accordingly,

(1)

Article 2 is amended as follows:

(2)

in Article 5, the following subparagraph is added to paragraph 3:

‘Member States may, where a large number of migrants attempt to cross their external borders in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order.’

(3)

in Article 5, the following paragraph is added:

(*1)  Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (OJ L, 2024/1359, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1359/oj)."

(*2)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).’;"

(4)

Article 13 is replaced by the following:

(*3)  Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).’;"

(5)

Chapter V is renamed as follows: ‘Specific measures relating to the external borders’;

(6)

the following Article is inserted:

(7)

Article 23 is replaced by the following:

(8)

the following Article is inserted:

(*4)  Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (OJ L, 2024/1348, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1348/oj)."

(*5)  Regulation (EU) 2024/1347 of the European Parliament and of the Council of 14 May 2024 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, amending Council Directive 2003/109/EC and repealing Directive 2011/95/EU of the European Parliament and of the Council (OJ L, 2024/1347, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1347/oj ’;"

(9)

the first paragraph of Article 24 is replaced by the following:

‘Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not based exclusively on road-safety considerations or required for the use of the technologies referred to in Article 23, point (a).’

(10)

Article 25 is replaced by the following:

(11)

the following Article is inserted:

(12)

Article 26 is replaced by the following:

(13)

Article 27 is replaced by the following:

(14)

the following Article is inserted:

(15)

Article 28 is replaced by the following:

(16)

Article 33 is replaced by the following:

(17)

Article 36 is replaced by the following:

(18)

the following Article is inserted:

(19)

in Article 39(1), the following point is added:

;

(20)

the following Article is inserted:

(21)

the text set out in the Annex to this Regulation is added as Annexes XI and XII to Regulation (EU) 2016/399.