EUROPEAN COMMISSION

Strasbourg, 14.12.2021

SWD(2021) 462 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders

{COM(2021) 891 final} - {SEC(2021) 440 final} - {SWD(2021) 463 final}

Table of contents

1.Introduction: Political and legal context

2.Problem definition

2.1.What is/are the problems?

2.1.2.    Discrepancies in the application of travel restrictions at the external borders undermining the trust and impacting the credibility vis-a-vis third countries    

2.2.What are the problem drivers?

2.3.How likely is the problem to persist?

3.Why should the EU act?

3.1.Legal basis

3.2.Subsidiarity: Necessity of EU action

3.3.Subsidiarity: Added value of EU action

4.Objectives: What is to be achieved?

4.1.General objectives

4.2.Specific objectives

5.What are the available policy options?

5.1.What is the baseline from which options are assessed?

5.2.Description of the policy options

5.3.Options discarded at an early stage

6.What are the impacts of the policy options?

6.2.Impacts on fundamental rights

6.3.Other impacts

7.How do the options compare?

8.Preferred option

8.1.Option 2

8.2.REFIT (simplification and improved efficiency)

9.How will actual impacts be monitored and evaluated?

Annex 1: Procedural information

1.Lead DG, Decide Planning/CWP references

2.Organisation and timing

3.Consultation of the RSB

4.Evidence, sources and quality

5.Analytical Methods

Annex 2: Stakeholder consultation

1. Schengen Forum

2. Minutes: Expert meetings on measures allowing for a more effective cooperation within the Schengen Area, 14 and 22 January 2021

3. Public consultation

Annex 3: Who is affected and how?

1. Practical implications of the initiative

2. Summary of costs and benefits

Annex 4: Relevant inputs and studies

Annex 5: Conclusions of the Chair – Schengen Forum 30 November 2020

Annex 6: List of reintroduced border checks at internal borders

Annex 7: Facts on the evolution of threats

Annex 8: Measures by the Schengen Member States at their internal and external borders in response to the first wave of Covid-19 (until 19 March 2020)

Annex 9: Examples of good practices during the COVID-19 pandemic

Annex 10: Use of police checks and new technologies within the last five years

Annex 11: Dutch @MIGO-BORAS system

Annex 12: Reports received by Member States with internal border control in place between March and June 2020 in accordance with Article 33 SBC

Annex 13: API and PNR

Annex 14: New IT Architecture at the external borders

Annex 15: Border Areas

Annex 16: List of legal acts and proposals mentioned in the Impact Assessment

Annex 17: 2017 Proposal of the amendment of the Schengen Borders Code

1.CONTEXT OF THE PROPOSAL

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

4.BUDGETARY IMPLICATIONS

5.OTHER ELEMENTS

Glossary

1.Introduction: Political and legal context

The Schengen area without controls at internal borders (the “Schengen Area”) is one of the most significant achievements of European integration. It comprises an area where European Union (EU) citizens and non-EU citizens legally staying in the territory as well as goods and services can circulate freely. Schengen is a key element for the functioning of the Single Market and its creation has brought significant social and economic benefits to European societies.

As illustrated by a 2018 EUROBAROMETER survey 1 , Europeans value Schengen very much, in particular the easier trade and travel, and the absence of passport control. This is confirmed by the high number of complaints and queries following the introduction of measures at internal borders in response to COVID-19 (see section 2.1.1).

1.1.Brief overview of the Schengen area 

The Schengen area stems from the 1985 Schengen Agreement and the 1990 Schengen Convention 2 . Originally conceived as intergovernmental cooperation, it became a fully-fledged Community policy thanks to the Treaty of Amsterdam and Treaty of Lisbon. At present, the Schengen acquis relating to the area without controls at internal borders applies to all Member States except Ireland 3 and to four Schengen Associated Countries (SAC).

The Schengen area is supported by a significant body of measures to compensate for the absence of controls at internal borders and ensure a high level of security. The Schengen acquis has developed over years and has been recently further reinforced in the areas of external borders (external border management, common visa policy), and compensatory measures (police cooperation, return policies and the Schengen Information System (SIS)). A robust monitoring mechanism 4 ensures the proper implementation of measures, both at the external borders and within the Schengen area.

At the core of the Schengen project is the abolition of checks at internal borders which, according to the Schengen Borders Code 5 (SBC), can be crossed at any point and time. To that end, Member States must remove obstacles to a fluid traffic flow at land borders, in particular speed limits not based on road-safety considerations.

The abolition of checks at internal borders implies that measures having an effect equivalent to border checks are also prohibited (Article 23(1) SBC). While no criteria are laid down in the law as to when measures have such equivalent effect, Article 23(1) SBC (and the relevant case-law 6 ) provides a non-exhaustive list of checks within the territory that are considered admissible, suggesting that in particular measures exclusively linked to the fact that a person is crossing the border are proscribed. However, the Member States continue to be able to carry out any other measures related to the exercise of police powers under national law.

Moreover, Member States may temporarily reintroduce border checks at their internal borders as a last resort measure, for a limited period of time, and in response to a serious threat to internal security or public policy, on the basis of the rules set out in Chapter II of Title III of the Schengen Borders Code. This possibility has been used extensively in the last six years (i.e. since the migratory crisis of 2015 and increased terrorist threats), impacting the exercise of the freedoms guaranteed by the Treaties.

1.2.A New Strategy for Schengen

In her State of the Union 2020 address, President von der Leyen announced a new strategy for the future of Schengen with a view to restoring the four freedoms “in full and as fast as possible” 7 . The idea of a new approach to Schengen replied to the challenges that the Schengen area has been confronted with in the past years: an extraordinary high level of migration in 2015, an increased threat from terrorism and COVID-19. This idea echoed in the Joint Declaration of the EU Home Affairs Ministers of 12 November 2020 8 . In the Pact on Migration and Asylum 9 , the Commission announced the establishment of a dedicated Schengen Forum in order to stimulate more concrete cooperation and to re-build trust between all relevant stakeholders of the Schengen area. The Forum, organised for the first time on 30 November 2020, gathered representatives of the Member States and of the European Parliament who agreed that Schengen needs to be made stronger and more resilient. The situation at the internal borders was also recalled in the European Parliament’s Resolution of 20 January 2021 on monitoring the application of Union law 2017, 2018 and 2019 10 . This Strategy should build on the efforts of the Commission to restore Schengen and to make it stronger, and is part of the wider exercise of making Europe more resilient, in the aftermath of the pandemic.

The upcoming Schengen Strategy will steer the process of reinforcing Schengen governance. It is to be accompanied by two initiatives: one to review the Schengen Borders Code, with conclusions to be drawn from the negotiations on the Commission’s proposal of 2017 (hereafter the “2017 proposal”) 11 , and a proposal to reform the Schengen evaluation mechanism 12 in order to make it a fully effective tool for evaluating the functioning of Schengen and implementation of the follow-up recommendations. The Strategy will also take stock of the initiatives and measures that are currently being implemented in the management of the external borders. This concerns in particular the measures related to the new IT architecture at the external borders (Entry Exit System (EES) European Travel Information and Authorisation System (ETIAS) and Interoperability) 13 . Finally, it will announce additional initiatives to reinforce security in the EU (e.g. on cross-border police cooperation), to complement the Commission’s continued efforts to make full use of the Schengen Information System and to increase the capacities of Europol 14 .

The revision of the Schengen Borders Code will particularly take into account the lessons learnt from the lack of sufficient support among Member States for the 2017 proposal. The 2017 proposal aimed at extending the time-limits applicable for reintroduction of internal border controls in exchange for stronger procedural safeguards. It provided for an increase of the time-limit for the temporary reintroduction of border control at internal borders in case of foreseeable threats to up to one year with prolongation periods of up to 6 months. In contrast, a new consultation procedure was foreseen, in which the Commission would have had the power to take a stance on the necessity and proportionality of the checks 15 .

This Impact Assessment assesses the options for making Schengen stronger and more resilient, including a fresh way forward on the Schengen Borders Code (the reform of the Schengen Evaluation Monitoring Mechanism is subject to a separate report). It is based on a consultation process launched at the Schengen Forum in November 2020 and continued through technical workshops in January and February 2021 with Member States, representatives of the European Parliament and stakeholders, as well as a public consultation carried out between 19 January and 16 March 2021 16 .

2.Problem definition

2.1.What is/are the problems?

Over the last six years, Schengen has been exposed to a number of challenges: an extraordinary migratory pressure in 2015 which exposed the deficiencies in the management of some external borders, terrorist attacks and, most recently, COVID-19. According to Eurostat 17 , in 2015, 1,255,600 first time asylum seekers applied for international protection in the Member States of the European Union (EU), a number more than double that of the previous year. To compare, in 2018 there were 699,000 applications lodged in the EU, including 631,000 first time applications 18 . The terrorist threat, while always present, has become very prominent in Europe since the attack on Charlie Hebdo six years ago, in January 2015, and the growth of the so-called Islamic State in Syria (yet, this development can be linked with Schengen only in a limited manner - see Annex 7). Finally, the fast spread of the COVID-19 pandemic caused between March and October 2020 an excess of deaths amounting to almost 300,000 in the EU, compared with the same period in 2016 – 2019 19 .

In response to these developments, some Member States decided to reintroduce border checks at some or all of their internal borders (see Table 1 below). While at first such decisions responded to clearly identifiable events, in particular major sports events, and for a certain period of time have been even recommended by the Council 20 (see Annex 7), now they often appear to be permanent precautionary measures. At the same time, measures agreed to protect the external borders in relation to COVID-19 are applied in an incoherent manner by a number of Member States, thus increasing the problems for the Schengen area as a whole. Although reintroducing border checks is a legitimate measure to address serious threats to internal security and public policy and may help the implementation of other legitimate measures (for instance travel restrictions), the geographical scope and duration of these border checks have had a heavy impact on the free movement of persons and the free circulation of goods, two fundamental freedoms guaranteed by the Treaties. The scale of this impact is outlined in section 2.1.3. The impact has been particularly visible at the land borders, affecting in particular the multiple economic and social ties in cross-border regions and the 150 million persons living in these regions.

Despite a number of initiatives taken by the European Commission (in particular the Recommendation of 12 May 2017 on proportionate use of police checks and police cooperation in the Schengen area 21 and the Recommendation of 3 October 2017 on the implementation of the provisions of the Schengen Borders Code on a temporary reintroduction of border control at internal borders in the Schengen area 22 , the proposal for an amendment to the Schengen Borders Code tabled in 2017 and high level discussions, as at the Schengen Forum on 30 November 2020) and a number of resolutions of the European Parliament 23 , these border checks have not yet been lifted.

Table 1 - Overview of border checks at internal borders September 2015 - May 2021*, based on notifications received from Member States

* This table does not take into account the border checks that were reintroduced but had again been lifted by April 2021.

For more information concerning the reintroductions of border checks at internal borders, see Annex 6.

Based on the experience of the last six years in the Schengen area, including the recent crisis situation related to COVID-19, two problems can be identified:

-Problem 1: Border checks at internal borders which are long-lasting and applied against an abstract threat or used as a first aid measure (and as such are often disproportionate and inadequate to address the threats they are supposed to tackle) become an unjustified hurdle to exercising the freedom of movement for persons and goods;

-Problem 2: Discrepancies in the application of the measures at the external borders, such as travel restrictions for non-essential travel to the EU by third country nationals, undermining the trust between Member States and increasing the incentives for some to reintroduce internal border checks, thus putting the overall functioning of Schengen at risk.

The existence of these problems is linked with the following specific issues:

Specific issues of effectiveness concerning Problem 1:

-Use of border checks at internal borders as a first aid measure without sufficient mitigating measures;

-Persistence of border checks at internal borders, while compensatory measures that would interfere less with the movement of goods and persons across borders are not or under-used.

Specific issues of relevance concerning Problem 2:

-Travel restrictions for non-essential travel to the EU at the external borders are only set out in a Council Recommendation which is legally not binding.

Box 1 – Problem definition

1.2.1.Border checks at internal borders which are long-lasting and applied against abstract threat or used as a first aid measure (and as such are often disproportionate and inadequate to address the threats they are supposed to tackle) become an unjustified hurdle to persons and goods moving in the Schengen area

This problem refers to a number of situations over the last 6 years where Member States have decided to temporarily reintroduce border checks at their internal borders, for different reasons. Since September 2015, border checks at the internal borders have been reintroduced more than 250 times. Even if, per se, border checks are without prejudice to the right of free movement, in practice they do have an impact on the way EU citizens can exercise this right. In some cases, they can also serve to implement other measures affecting the freedom of movement, in particular travel restrictions.

Box 2 – Absence of checks at internal borders and freedom of movement

In 2020, the numerous reintroductions of border checks at internal borders intended to contain (or to help contain) the spread of COVID-19 revealed a number of specific problems which will be analysed in point a) below. Similarly, the years preceding the pandemic, where a number of Member States carried out persistent border checks at their internal borders or on some sections of these borders, provide evidence on how ineffective these checks often are. This will be analysed in point b) below.

a)Internal border checks as a measure of first aid 

In the period March – June 2020, border checks at internal borders have often been applied a first aid measure and 17 Member States reintroduced border checks in an (unsuccessful) attempt to contain a further spreading of COVID-19. Some of them maintained or re-reintroduced them again even during periods where the epidemiological situation across the EU was comparable between the Member States. The identification of new variants of the virus at the end of 2020 led again to another wave of reintroductions of border checks at internal borders.

Until the adoption of sectorial guidelines by the EU with the aim to mitigate the unwanted effects of internal border controls (disruption of supply chains, disproportionate hurdles to free movement of persons, goods and services), Member States and EU citizens have been exposed to unprecedented disruptions.

Annex 8 shows the state of play as of mid-March 2020 as regards the measures taken by the Member States to respond to COVID-19. Table 2 below illustrates problems identified around the same time, which have been considered as hindering, in a disproportionate way, professional travel and/or the smooth transport of goods and services, as well as other rights of EU citizens. The more specific impacts of these measures on the freedoms are further explained in sections 2.1.3.1 and 2.1.3.2 below.

Table 2 – Examples of problems at internal borders in 2020

Based on the DG REGIO Report The effects of COVID-19 induced border closures on cross-border regions - An empirical report covering the period March to June 2020’

The situation has evolved since Spring 2020, and the border measures have often been lifted and introduced again. This means that people, in addition, also had to keep pace with frequent changes in the applicable rules. The public consultations provided some insights to illustrate this challenge. According to Eurostar ‘The clarity and reciprocity of border restrictions, and their joint implementation, is essential [...]’ 26 . ‘[B]order restriction rules have been changing and updating on a virtually daily basis. The result has been confusion for passengers, staff and within governments. Frequently governments’ own information (e.g. embassy websites) has failed to keep up and had been partial, inaccurate or missing entirely. The overwhelming majority of passengers are trying to be responsible but if the rules are not clear and simple, they struggle to comply. Eurostar staff and border forces are put in the difficult position to have to interpret rules and regularly fail to provide answers with confidence’ 27 .

·Perspective of the cross-border regions

The uncoordinated response has affected in particular cross-border regions where the socio-economic ties between EU citizens and companies based in different Member States are very strong. The sudden reintroduction of border controls also affected the local capacities to ensure essential services on both sides of the border. These problems illustrate the fact that borders should be understood in the first place not as lines separating national sovereignties, but as areas where people live together.

As reported by DG REGIO 28 , around 150 million Europeans live in border regions amounting to 30% of the EU population. The cross-border regions cover 40% of the EU territory and produce 30% of the EU's GDP. Therefore, any changes as regards the possibility to cross the borders without controls are socially and economically significant. The specific impacts of measures at the internal borders on the cross-border regions are described in section below 2.1.3.

According to the study by DG REGIO ‘The effects of COVID-19 induced border closures on cross-border regions - An empirical report covering the period March to June 2020’ 29 and the ‘20 case studies covering the period March to June 2020’ 30 accompanying it, the measures taken by the Member States have had a significant impact on different elements of cross-border ties. The most relevant for this Impact Assessment relate to the area without border checks at internal borders, and concern primarily cross-border workers.

The adopted measures triggered a lot of discussion and local initiatives. For instance, in the High Rhine Region, the citizens’ dialogues carried out in Summer 2020 led to the conclusion that the decision-making process in the situation of crisis should include: i) close coordination with neighbouring countries, ii) maintaining local border traffic, and iii) uniform rules to minimise the number of regimes applicable in the cross-border regions 31 .

The cross-border regions also experienced many difficulties related to constant changes. In 2020, the Euregio Meuse-Rhine region alone received 416,000 questions from citizens and businesses. This aspect also demonstrates the need for closer cooperation. In this context, the Euregio Meuse-Rhine called for even more cross-border cooperation in the situation of crisis in order to do justice to the shared responsibility for the labour market. Furthermore, in a position paper of 21 September 2021 the Heads of State and Government of the Benelux and Baltic countries call for a closer monitoring of the Union’s border regions as a lesson learnt from the experience with the pandemic and the inclusion of a cross-border test into the policymaking process at Member State and Union level 32 .

·Effectiveness and efficiency of border checks in addressing threats to public health

The objective of border checks reintroduced during the pandemic at internal borders has been to enforce travel bans for non-essential travel. However, the effectiveness of travel bans in the context of an epidemiological threat is not evident. The WHO expressly holds that “[t]ravel bans to affected areas or denial of entry to passengers coming from affected areas are usually not effective in preventing the importation of cases but may have a significant economic and social impact.” 33 Several media outlets cite WHO officials calling on States to keep their borders open. Considering the side-effects of border closures, Michael Ryan, the WHO emergencies director, held that “[c]ontinuing to keep international borders sealed is not necessarily a sustainable strategy for the world’s economy, for the world’s poor, or for anybody else” 34 .

Therefore, the WHO continuously advised against travel and trade restrictions to countries experiencing COVID-19 outbreaks 35 . However, it recognised that “[t]ravel measures that significantly interfere with international traffic may […] be justified at the beginning of an outbreak [of a pandemic], as they may allow countries to gain time, even if only a few days, to rapidly implement effective preparedness measures”, but also underlined that these “must be based on a careful risk assessment, be proportionate to the public health risk, be short in duration, and be reconsidered regularly as the situation evolves.” 36 The available studies concerning the effect of travel restrictions on the spreading of COVID-19 seem to confirm this assessment. Accordingly, following the appearance of new variants of the COVID-virus, the Council has only recommended to discourage non-essential travel but not to issue travel bans 37 .

·Response time to mitigate impacts – unavailability of mitigating measures from the outset

From the start of the pandemic, the Commission worked closely with the Member States to ensure a coordinated approach to border-related issues and a gradual return to free movement. It organised regular videoconferences, both at the ministerial level and technical level, bringing together experts from Member States, different Commission services and relevant EU agencies such as European Centre for Disease Prevention and Control ECDC and Frontex. All these efforts have been made despite the lack of relevant tools. These meetings, organised on an ad-hoc basis, remained thus voluntary, without any basis in the applicable law.

Furthermore, the necessary coordination instruments, such as guidelines and recommendations that resulted from these discussions were adopted on an ad hoc basis, which can be considered a good basis for ‘mitigating measures’ to be applied whenever several Member States reintroduce border checks at their internal borders.

Table 3 – Measures adopted by the Commission in 2020*

* Further measures have been and are still being adopted in 2021

In the public consultation, Member States, the European Parliament and the private sector have welcomed the coordination role assumed by the Commission in the fight against COVID-19 38 . Some stakeholders (primarily carriers associations) regretted the absence of contingency rules from the outset, as this, in their view, could have prevented patchwork solutions and different interpretations by Member States.

The absence of a mechanism at the EU level to deal with such emergency situations caused delays which impacted both the border regions and the entire Schengen area and should be considered as a significant part of the costs outlined below in Section 2.1.3. Moreover, also the implementation time on the ground, in the follow-up to the adoption of the different guidelines, had an impact. Still in April 2020, weeks after the European Commission had adopted its Communication on the implementation of the Green Lanes under its Guidelines for border management measures to protect health and ensure the availability of goods and essential services, stakeholders (the International Road Transport Union) voiced concerns related to “several hours of waiting time at some newly created intra-EU borders” 39 .

b)Long-term hurdles for persons and goods to move freely in the Schengen area

Apart from the difficulties due to COVID-19, Schengen has been exposed to many other challenges over the last few years. In particular, the last six years have seen persistent border checks at internal borders in six Member States (France, Austria, Germany, Sweden, Denmark and Norway), that repeatedly prolonged these border checks due to different threats (migration, terrorism, shortcomings at the external borders). These border checks have been repeatedly prolonged despite the evolution of the situation: relevant circumstances have changed (change of migratory patterns removing the pressure from some border sections, evolution of terrorist threats towards ‘single wolf’ type), the intensity of specific threats has decreased considerably (with the number of irregular migrants currently at a level comparable to the period preceding 2015/2016 which, together with other measures taken in related areas, should reduce the problem of secondary movements), and counter-measures have been adopted at EU and national level to reinforce the external borders.

Since the very beginning of Schengen 40 , Member States have always had the possibility to reintroduce temporary checks at internal borders. In the Schengen Borders Code, adopted for the first time in 2006, a specific procedure and time-limits depending on the character of the event posing a threat (foreseeable/non-foreseeable) were set up 41 .

At first, Member States used the possibility of temporary reintroduction of border checks at internal borders quite rarely – between 2006 and 2015, border checks were reintroduced by 16 Member States in only 36 situations in total, mostly in relation to international sport or other events taking place in the Member State concerned. In the vast majority of cases, the checks only lasted for a couple of days.

The situation changed in 2015, with the mass-influx of third-country nationals and the terrorist attacks in Paris. Since then, until March 2020 (i.e. the beginning of COVID-19 related reintroductions of border checks) there have been more than 250 cases of temporary reintroduction of border checks. Six of the Member States (Austria, Germany, Denmark, Sweden, Norway and France) have kept border checks continuously in place during this entire period.

The grounds and duration of all the instances of temporary reintroduction of border checks is available on the website of DG HOME 42 (see also Annex 6). Five Member States (Austria, Germany, Denmark, Sweden and Norway) referred to the extraordinary migratory pressure to justify the reintroductions between September 2015 and May 2016. Between May 2016 and November 2017, the prolongations followed the Recommendation of the Council 43 adopted in the special procedure of Article 29 of the Schengen Borders Code, in view of the persistent serious deficiencies identified at one of the external borders. However, as of November 2017 these five Member States have continued border checks based on unilateral decisions, giving secondary movements of migrants, terrorist threats and/or alleged deficiencies at the external borders as a justification. This was the case even where the data available to the national authorities indicated that the number of apprehensions of irregular migrants continuously reduced since 2015 and when the number was even lower than in the period before 2015 44 . 

France is the only Member State which has been continuously carrying out checks at all its internal borders in view of terrorist threats or international events (e.g. Tour de France). Only recently, in the last few prolongations France has also referred to the migratory situation (and COVID-19).

Border checks at internal borders are not sufficient to address the underlying threats. At the same time, they are the most onerous measure to address threats to internal security or public policy. In the public consultation carried out by the Commission, all but one responding business associations and company/business organisations indicated they have suffered either from delays when transporting goods across the borders (60%) and/or from other problems (60%), due to reintroduced border controls. These checks create significant costs for the private sector but also for the national administration, which has to engage resources on a quasi-permanent basis on often large areas of internal borders (for details see Section 2.1.3). Accordingly, 63 % of EU citizens and all business associations and companies indicated in the public consultation that actions for the removal of difficulties to cross internal borders should be reinforced within the Schengen framework. 52 % of the EU citizens and 70 % of the business organisations additionally agreed that control and monitoring of Schengen States’ compliance with the applicable rules should be improved 45 .

To be noted that the above general limitations of internal border controls cannot be considered as an argument against reintroductions of internal border controls as such. In some circumstances (e.g. beginning of COVID-19, i.e. in the circumstances different from the ones of 2015/2016) border controls at internal borders may indeed have added value. However, in all instances of the internal border controls requiring prolongation, the same challenge of phasing out from internal border controls and substituting them by other measures, remain a main challenge.

·Insufficient use of compensatory measures for the absence of border controls at internal borders

In particular thanks to progress on the technological side, a number of measures other than border checks are available to the Member States to address threats to internal security or public policy. The use of new technologies, police checks and cross-border police cooperation or Advanced Passenger Information (API) in the future (see section 2.2.3) are often able to achieve the same objectives as the border checks put in place by Member States, while being more effective in this respect. At the same time, both the impact on the circulation of persons and goods as well as the direct costs of these measures are lower when compared to border checks.

Based on the feedback received from the Member States in the consultation process 46 , most of the Member States have access to such measures have the possibility to deploy new technologies in the border areas or carry out police checks there. Annex 10 provides an overview of the information that has been collected, while Annex 11 provides a description of the Dutch flagship measure, the @MIGO-BORAS system. This system allows for electronic license plate recognition, verification of relevant databases and dispatching patrols of the Royal Marechaussee 47 to carry out spot checks.

The possibility of using such compensatory measures is reflected both in the Schengen Borders Code (Article 23) and in the 2017 Recommendation on proportionate police checks and police cooperation in the Schengen area. While the Recommendation concerned in particular police checks and cross-border police cooperation, it also recognised the role of new technologies and called for privileging these measures over internal border checks.

In the consultation process, some Member States disagreed with the view promoted by the Commission that police checks are a valid alternative to border checks at internal borders, in particular as they do not allow for immediate refusal of entry. However, it seems telling that, for instance, the Netherlands have not reintroduced any border checks at internal borders since 2015, relying entirely on the Royal Netherlands Marechaussee forces and @MIGO-BORAS 48 .

On the other hand, during the Expert meetings on measures allowing for a more effective cooperation within the Schengen Area, on 14 and 22 January 2021, one representative underlined the industry’s openness for new technologies, but emphasized that these should be in line with international standards, e.g. the IATA. At the same meeting, one carrier’s representative acknowledged that the use of technology could facilitate the work of border services, holding that new technology solutions must be coordinated by clear rules and may not lead to delays or increased waiting time. The results of the public consultation show a high approval rate of companies for the use of compensatory measures. 80% of the business representatives agreed that border controls should be substituted by alternative measures where possible. What is more, all participating business representatives expressed their support for reasonable automated control measures 49 .

1.2.2.Discrepancies in the application of travel restrictions at the external borders undermining the trust and impacting the credibility vis-a-vis third countries

Following the outbreak of the COVID-19 and in the absence of adequate rules in the Schengen Borders Code, the Member States took an uncoordinated approach in particular as regards their external borders: some banned all travels from third countries while others adopted a more lenient approach. In response to such disarray amongst Member States, in March 2020, the Commission called for a coordinated decision on applying travel restrictions on non-essential travel from third countries into the Schengen area. The purpose of this call was to avoid some Member States letting in travellers from countries with a highly problematic epidemiological situation which could have increased the risk for the entire Schengen zone and created additional incentives for other Member States to set up internal border controls in the Schengen area, in order to prevent these persons from crossing into their territories. This call was followed by all EU Member States (with the exception of Ireland) and all Schengen Associated Countries and was later included in the 2020/912 Council Recommendation 50 .

However, although Member States have agreed among themselves on a list of third countries for which alone the restriction on non-essential travel could be lifted, they have applied the Recommendation referred to above in very different ways. Only some apply the list of countries in full, while others decided to lift the restrictions only to some or even none of the countries on the list. Other Member States lifted the restrictions to third countries that were not on the list at all, thus putting at risk the overall functioning of the Schengen area.

The divergences in implementation are shown by state of play of 16 April 2021: 14 Member States (Croatia, Cyprus, Estonia, Finland, Greece, Iceland, Latvia, Liechtenstein, Lithuania, Luxembourg, Portugal, Slovenia, Spain and Switzerland) were open to non-essential travel from the listed third countries, 6 Member States (Belgium, Denmark, France, Hungary, Norway and Slovakia) were closed to any third country, while the remaining 10 Member States used the list with a considerable degree of flexibility. Furthermore, 13 Member States were open for non-essential travel from a wide group of third countries not listed in the relevant Annex to the Council Recommendation. This concerned in particular Bulgaria (18 non-listed third countries), Cyprus (16), Greece (4), Italy (5), Lichtenstein (5), Malta (6), the Netherlands (5) and Poland (6).

Furthermore, by the end of March 2021, a number of Member States were already using or planning to use proofs of vaccination or recovery as a tool to lift Covid-19 related restrictions while Council Recommendation 2020/912 still does not provide for that possibility. On 17 March 2021, the Commission made a proposal for a Regulation on an interoperable health certificate 51 , the so-called Digital Green Certificate, to facilitate free movement during the COVID-19 pandemic. Following the approach that restrictions to free movement “of persons who do not pose a risk to public health, for example because they are immune to and cannot transmit SARS-CoV-2, should not be restricted, as such restrictions would not be necessary to achieve the objective pursued” 52 , this certificate shall certify vaccination against COVID-19, negative test results and recovery from COVID-19 and be valid throughout the Union. The European Parliament approved the parliamentary scrutiny of the proposal under the urgent procedure 53 . However, this proposal and a second one extending the provisions to third country nationals legally staying or residing in the European Union 54 only regulate movements within the Schengen area, and not travel to the EU.

For instance, one Member State announced mid-March that as of 26 March, any third country national carrying a proof of vaccination or recovery from Covid-19 would be able to enter the country, irrespective of the reason of travel. Two other Member States have both concluded agreements with Israel to exempt vaccinated travellers from testing and quarantine.

As to the application of the exemptions from the travel restrictions provided for in the Council Recommendation (in particular travel of family members of EU citizens and residents and travel for an essential function or need), as reported by Fragomen Europe Immigration Taskforce, the application of these exemptions is often left to the discretion of the border guards who are sometimes not sufficiently aware of the changing rules and the documents that can be supplied as evidence. For instance, certain Member States require an “essential travel certificate”, to be issued by the national authorities, for entry of persons exempted from the travel restriction. While such certificate allows travellers to face less issues at the border, difficulties are experienced when applying for the certificate at the consulate, as the latter has full discretion in determining whether the trip is considered as essential travel. 

On this point, it is interesting to note that 83% of the EU citizens who replied to the stakeholders’ consultation would like coordination in crisis situations to be reinforced. Similarly, being asked if a coordination at EU-level of measures applicable at the external borders of the EU in response to common threats such as a pandemic is beneficial, 90.91% of the EU citizens agreed and only 5.05% disagreed. Likewise, 90% of the business associations and company/business organisations considered the coordination at EU-level of measures applicable at the external borders of the EU in response to common threats such as a pandemic as beneficial.  55

1.2.3.Impacts of the identified problems

The two identified problems are: i) border checks at internal borders which are long-lasting and applied against abstract threats or are used as a first aid measure and as such become an unjustified hurdles to persons and goods moving in the Schengen area (2.1.1), and ii) discrepancies in the application of travel restrictions at the external borders undermining the trust and impacting the credibility vis-a-vis third countries (2.1.2). While the size of the recovery plan for rebuilding post-COVID-19 Europe amounting to EUR 1.8 trillion may give an indication when assessing the overall damage caused by the pandemic to the EU, there is no data available at this stage on how much of that damage has been caused by border checks.

In general, data both on the intended positive effects of reintroduced border controls as well as the negative effects (also of the long-lasting abstract border checks in place for several years) are difficult to come by. One of the reasons for this lack of data is that Member States are obliged to report on the effects and side-effects of their border controls only once the checks have been lifted again (Article 33 SBC). Therefore, the six Member States which continuously prolonged the checks over the past five years have not yet had to report on the impact of the border controls.

As regards the internal border checks that were reintroduced during the COVID-19 crisis, the situation is slightly different. Member States that reintroduced border checks in response to the first wave of COVID-19 and lifted them by the end of June 2020 submitted their reports but, unfortunately, with great variations as concerns the quantity and the quality of their contents. For more information see Annex 12.

Given this lack of specific data, the efforts of calculating the cost of non-Schengen by the Commission in 2016 and by the European Parliament in 2017 remain the main point of reference to demonstrate the impacts of border checks if maintained for a longer period of time, irrespective of their ground. Therefore, this section uses them as a basis for assessing the impacts of the problems identified in sections 2.1.1 and 2.1.2, but also builds on the inputs received from stakeholders during the public consultation.

1.2.3.1. Impacts of the long-lasting border checks at the internal borders

As outlined in the Communication ‘Back to Schengen – a Roadmap’ 56 , the Commission estimated in 2016 that a full reestablishment of border controls to monitor the movement of people within the Schengen area would generate immediate direct costs for the EU economy in a range between EUR 5 and EUR 18 billion annually 57 . These costs would be concentrated on certain actors and regions but would inevitably impact the EU economy as a whole. While the free exchange of goods within the EU amounts to more than EUR 2,800 billion in value and 1,700 million tonnes in volume, the highest and most immediate impact of border controls would be felt by the road haulage sector, with EUR 1.7 to EUR 7.5 billion of additional direct costs each year.

A study of 2016 commissioned by the European Parliament (see Annex 4) 58  on the same topic even suggests annual costs of between EUR 6.5 billion and EUR 13 billion for the road freight sector if internal border controls were reintroduced at all internal borders. In the case of limited reintroductions by the Member States having internal border controls in place in April 2016, 59 the annual costs for the road freight sector are estimated to reach EUR 0.7 billion to EUR 1.3 billion annually 60 . Data on the specific situation of France indicated that internal border controls leading to an assumed waiting time of 30 minutes would cause a direct economic loss of EUR 62 million for both, import and export 61 .

According to the Roadmap, these additional costs would have a particularly harmful impact on sectors that operate on small margins and/or where transport presents a high percentage of the costs. Sectors indicated as potentially particularly affected were agricultural and chemical sectors as well as the transport of raw materials. In the medium term, costs of transport that are unduly increased by delays in border controls could hurt the efficient development of EU value chains and the competitiveness of the EU economy as a whole.

Moreover, the estimates of the Commission of 2016 demonstrated that with 1.7 million workers in the EU crossing a border every day to go to their jobs, the reintroduction of border checks at all internal borders would cost commuters and other travellers between EUR 1.3 and EUR 5.2 billion in terms of time lost 62 . More importantly, long waits at the border would discourage people from looking for cross-border opportunities in the labour market, reducing the pool of potential workers. This would in the medium term reduce the economic efficiency of some regions. In the case of France, the increased costs for cross-border workers would lead to a decrease in the number of workers willing to cross the border to reach their work place by more than 5,000 workers if the waiting time increased by 10 minutes, or by more than 10,000 workers if the waiting time increased by 20 minutes, which would equal an economic loss of EUR 150 million or EUR 300 million respectively (without accounting potential unemployment-related costs) 63 .

As a long-term consequence of systematic permanent border controls in the Schengen area, the trade between Member States would decrease between 10 and 20% within the 10 year period from 2016 to 2025 64 . This would lead to a decrease of the Schengen area’s GDP by 0.8%, equivalent to more than EUR 100 billion 65 . For France alone, the loss would amount to 0.5% of the GDP, equalling EUR 10 billion 66 .

According to another study 67 , the reintroduced internal border controls in the Schengen area notified to the European Commission from summer 2015 until April 2016 68 have reduced the trade in goods and services by 1.3% compared to 2011, which corresponds to an annual decline in trade volume of EUR 70.19 billion and a decrease of the aggregate EU real GDP by approximately EUR 12.5 billion, which equals 0.10% of the GDP. In general, the data of this study suggests, that smaller and peripheral States would be much stronger affected than the larger and/or central ones. 

According to another study specifically with regard to Germany, developing the hypothesis of permanent border checks in the aftermath of the migratory crisis, the reintroduction of permanent border checks at internal borders would lead to a growth loss of EUR 77 billion between 2016 and 2025 for Germany, and EUR 470 billion in total for the EU 69 . 

Specific data on the costs of border controls for different sectors is difficult to collect as the facilitation of border crossing along the internal borders of the EU must be carried out in a non-discriminatory manner. For instance, the Green Lanes system that was established in March 2020 in response to COVID-19 does not distinguish between different types of goods or origins and destinations of the vehicles 70 . Moreover, such a distinction would add an additional layer of difficulty and further delays at the border.

·Specific impacts on the air travel industry

A study by the association “Airlines for Europe” identifies the “reintroduction of border controls within the Schengen area” as one of the gaps in the full implementation of Europe’s Single Aviation Market 71 . The study estimates that in the period from 2016-2019, on average 145,394 air passengers were affected by internal border controls, with the total costs for air passengers caused by reintroduced internal border controls ranging between EUR 291 million (calculating with additional cost of EUR 2 per border crossing) and EUR 872 million (EUR 6 per border crossing) per year” 72 .

The persistence of border checks creates significant challenges for the airport operators. As highlighted by ACI (Airport Council International) “the reintroduction of border control at internal borders leads to the physical separation of an additional passenger category (passengers on Schengen internal flights subject to border control). This new passenger category is currently separated from passengers on domestic flights with no border control and from those on international flights subject to border control. ACI EUROPE believes that airports have not been designed to comply with such a requirement on a permanent basis” 73 .

·Impacts on the cross-border regions

While not all regions have been affected equally 74 , it is clear that the economic and social impacts of persisting border checks are the most visible on a local scale. For instance, the Øresund Strait between Sweden and Denmark is crossed by 95,900 persons on a daily basis (both directions, with 42,900 persons traveling by car, 32,100 by train across the Øresund Bridge and the rest by ferries) 75 . According to the Oresundsinstituttet 76 , the measures adopted by Sweden and Denmark in 2016 at this internal border including border checks amounted to SEK 152 million, for the first half a year since the introduction of ID and border checks, or 6,600 extra hours on the train daily for those travelling over the bridge, and 332,000 fewer job opportunities in Zealand accessible at that time within a one-hour commute from Malmo Central as compared to the period before the reintroduction measures at this internal border.

The survey carried out for the County Administrative Board 77 demonstrated that 39% of the nearly 400 interviewed considered changing the job and seeking employment in their country of residence, while 26% considered moving to their country of employment, with only 18% not planning to stop commuting. Another study referred to by the Oresundsinstituttet indicates that 64% experienced an increase in stress, and 70% were strongly affected by not knowing when they would arrive 78 .

A Commission case study of 2017 on this specific border region confirms these effects 79 : the border controls introduced in 2016 have added to the already existing cross border difficulties at this specific border section. A report commissioned by the Chamber of Commerce and Industry of Southern Sweden mentioned in the study estimates that the border controls between Sweden and Denmark have led to societal costs of SEK 1.5 billion (or EUR 150 million). Two thirds of these costs related to delays in cross-border traffic, while the remaining share relates to the shrinking market potential (e.g. reduced number of potential jobs for employees; smaller pool of workers available to employers) 80 .

In the case of the limited reintroduction of internal border controls in the Member States having internal border controls in place in April 2016, the total annual costs for commuters would amount to between EUR 168 million and EUR 606 million 81 . As a concrete example for the impact on one Member State serves the data available for the commuters residing in France, the country of origin of most commuters in the EU 82 . 350,000 French residents cross the borders on a daily basis to work in Belgium, Germany, Luxembourg, Switzerland or Spain. Based on a value of time of EUR 10 per hour, the costs of an assumed delay of 10 minutes due to the reintroduced border controls would amount to EUR 1.7 per border crossing, accumulating to EUR 723 a year, calculating with 217 working days. For a 20 minutes delay, these cost would double, amounting yearly to over EUR 1,400 per commuting worker. The total social-economic costs for French commuting workers for an additional 10 minutes spend at border controls are estimated to amount to EUR 250 million per year, for an additional 20 minutes, it would amount to EUR 500 million 83 .

·Impacts on the administration

Finally, the estimates of the costs of non-Schengen referred to above indicate that between EUR 0.6 and EUR 5.8 billion of administrative costs would have to be paid by governments due to the need for increased staff for border controls. The costs related to the physical establishment of border controls are estimated at EUR 7.1 billion for the whole Schengen area (EUR 0.7 billion for the above mentioned seven Member States) 84 . Notably, the costs for the physical establishment of border controls have a higher impact on the total costs when the period of the reintroductions is shorter 85 . As the study assesses a scenario of a two-year reintroduction and an indefinite reintroduction, the situation experienced during the COVID-19 pandemic of Member States reintroducing border controls repetitively over short periods of time, sometimes not continuously, might be different. As these costs fall under the exclusive responsibility of the national administrations, they are not reported to the Commission.

·Impacts on border management capacity

The reintroduction of border checks at internal borders requires significant resources. In times of limited public resources, the necessary staff is normally made available by temporary reassignment from other services, leading to shortages in staff in the services of origin. For instance, an unannounced Schengen Evaluation visit to the Nice and Orly airports in 2019 revealed that these two airports lack trained border guards to control travel from third countries, while France has been carrying out border checks at the border with Italy since 2015.

1.2.3.2. Impact of reintroduced checks at internal borders due to COVID-crisis

While the border checks due to the COVID-crisis cannot compare in terms of duration with the long-lasting border checks introduced by the six Member States referred to above, these border checks have been introduced temporarily by a much higher number of Member States (17). They aggravated the trend that the Single Market was hit disproportionately by the COVID-related restrictions in comparison to national GDPs. These restrictions caused major disruptions to the free flow of goods, services and people, resulting in a fall of intra-EU trade by 24% in Q2 and Q3 2020, while GDP fell by 7% 86 . Furthermore, due to the lack of coordination and the rapidly changing measures the costs for citizens and businesses to adapt to these changes can be estimated to be much higher than those of long-lasting border controls (see above). The lack of uniform application of measures at external borders has also led to a lack of clarity among travellers coming from third countries, leading to numerous queries via EU Delegations, overall impacting on the predictability of travel and credibility of the measures taken.

In some “twin cities” (see Map 1 ) measures taken at the beginning of the COVID-19-crisis prevented school children from going to school and elderly people from going to the supermarket closest to their homes as these schools and supermarkets were located on the other side of a hard border. The decision of Spain and Portugal in response to the first wave of COVID-19 to close the border, leaving open only eight border crossings 87 on one of the longest internal borders of the EU, led to the following comments: “On a map, this seems fair, but this section of the border is the busiest of all the Spanish-Portuguese border, and there are three EGTCs and four Eurocities, which gives an idea of the importance, permeability and interrelationship of these territories. These Eurocities were cut off, in many cases they are simply separated by a bridge and they were completely divided. ” 88 Moreover, on the Galicia-Norte border, there are more than 12,000 cross-border workers who cross every day and had to make journeys of at least 50 km and, in some cases, 100 km or even more due to the border closure.

Finally, the border regions expect that, if no solution is found to this problem, the attractiveness of cross-border employment is going to be affected considerably. In particular, cross-border workers have come to realise during the pandemic that they are particularly vulnerable due to their status. Not being able to perform work cross-border raised the issue of the State competent for taxation purposes 89 . To address this issue, some Member States adopted temporary arrangements: for instance, Belgium and the Netherlands adopted an agreement valid from 11 March 2020 until 31 May 2020. However, the approach to this issue may differ from one cross-border region to another.

2.2.What are the problem drivers?

The identified problems are driven by the drivers set out in sections 2.2.1- 2.2.6 below.

Figure 1 - Problems, Problem drivers and Objectives

1.2.4.Disproportionate and inadequate use of border checks at internal borders

Article 72 of the Treaty on the Functioning of the European Union clearly states that “This Title [Title V, Area of Freedom, Security and Justice] shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. Accordingly, Member States remain in the best position to assess if there is a threat and how to address it. In view of that, they may adopt unilateral measures, without engaging in a discussion on their effects on the rest of the EU.

This approach has been particularly visible during the COVID-19 crisis where internal border checks have been reintroduced repeatedly despite their impact on the economy and the fact that the added value of that measure in containing the spread of the virus is not proven and even largely contradicted by the European Centre for Disease Prevention and Control (ECDC) 90 .

The same approach has also manifested itself during the last six years, when some Member States prolonged border checks at their internal borders over many years despite changing circumstances and refused entry to thousands of third country nationals on the grounds of insufficient documents. Such unilateral decisions had an impact on the neighbouring Member State that remained confronted with the problem 91 . For more information on the evolution of these threats from the perspective of the Commission see Annex 7. The effectiveness of such controls is difficult to quantify, as Member States only have limited reporting obligations and in many cases prefer not to share comprehensive data on national security operations.

The disproportionality furthermore results from the fact that the reintroduction of internal border controls generates in the long term high costs (see 2.1.3.1), while there is an indication that alternative measures such as police checks or bilateral agreements and arrangements for the readmission of irregular migrants generate lower costs, but assuring the same results. The Dutch @MIGO-BORAS system, for example, can be used to check passing vehicles and select those to be stopped and examined without the need for a continuous physical control procedure at the border 92 . Any difficulties reported by some Member States as regards the application of the readmission agreements should not justify the reintroduction of internal border controls, but rather modifications in the legal framework for such agreements.

1.2.5.Lack of sufficient coordination in the EU (absence of a platform at EU level to discuss measures affecting Schengen in a crisis situation) 

Under the Schengen rules (Article 27(5) SBC), Member States are obliged to consult with the other Member States and the Commission if they are considering reintroducing border checks unilaterally at internal borders. These consultations have to take place at least 10 days before the planned date of reintroduction. The purpose is to organise, where appropriate, a mutual cooperation between the Member States for the duration of the border checks and to examine the proportionality of the measures as compared to the underlying events, i.e. the threat to public policy or internal security.

This process is clearly not suitable for emergency situations such as the outbreak of a highly contagious disease. Indeed, the COVID-19 experience showed that Member States act on their own without consulting or even in some cases informing other Member States even when confronted with the same threat. In addition, as the experience of the last year demonstrates, it is also not suitable for events affecting more than two Member States. As a result, until the ad hoc initiative of DG HOME to organise conferences twice a week and the activation of the Integrated Policy Crisis Response (IPCR) 93 at the level of the Council there was no EU structure to discuss and co-ordinate the measures adopted in line with the evolving circumstances. In particular, the diversity of the aspects at stake made the discussions on the border measures taken in response to the COVID-19 pandemic in the Council very difficult as none of the existing Council formations had a sufficiently broad scope. IPCR focused at the start of its activation under the Croatian Presidency on the health aspects, and only later started to take into account the effects of COVID-19 on other policy areas, such as border management. Therefore, the issue lies not on the efficiency of the IPCR which proved to be a useful tool but on the lack of a pre-agreed and formalised institutional answer to a health crisis. 

1.2.6.Insufficient use of measures other than border checks at internal borders

Member States have at their disposal a number of measures that can achieve the same objectives as border checks at internal borders.

Although the 2017 Recommendation on proportionate police checks and police cooperation in the Schengen area has been positively received by the Member States, it has not triggered any substantial changes. Based on the feedback from the Member States in the workshops organised in 2017 in follow-up to the Recommendation 94 and the recent workshop organised as a part of the public consultation process for the Schengen Strategy 95 , it appears that the Recommendation has not led to any legislative or operational changes, with only France stating that they have modified the rules applicable to border checks in the border areas and beyond. Even if many Member States claim that the police checks carried out on their territory comply with the Recommendation and that the rules described therein provide for sufficient flexibility 96 , in the absence of quantitative data from the Member States, it remains to be noted that none of the Member States carrying out border checks at internal borders since 2015 has actually lifted these checks and reinforced police checks instead (see Annex 10).

Moreover, during the public consultations, some Member States signalled the problem that the conditions of use of compensatory measures considered as alternatives to border checks (use of new technologies such as video surveillance, number plate recognition systems or drones) are not clearly specified or defined. For some, these measures should not be used instead of border checks at internal borders, but in addition to them. One Member State considered that maintaining police measures for an unlimited period of time at internal borders would be unacceptable 97 . Similarly, 72.66% of EU and non-EU citizens agreed that border controls at internal borders should be substituted, whenever possible, by non-systematic alternative measures, such as police checks and modern technologies 98 .

Furthermore, any future developments concerning the collection of Advanced Passenger Information (API) data on intra-Schengen air connections could be challenged under the current wording of Article 23 of the Schengen Borders Code referring to compensatory measures as leading to prohibited measures having effect equivalent to border controls. To recall, for a number of Member States, API (notably in combination with Passenger Name Records (PNR)) data have a huge potential in terms of enhanced security at a relatively small expense and without interference with travel flows 99 . For more information on API and PNR see Annex 13.

1.2.7.Absence of rules concerning the application of extraordinary measures at the external borders during crisis situations affecting several Member States

The Schengen rules provide for common standards concerning border checks on persons at border crossing points and border surveillance at the external borders. These checks are based on the verification of the entry conditions for third country nationals. The idea behind these rules is that, if a borderless Schengen area is supposed to function, there must be agreement between all countries concerned and a common practice on who can enter this area.

One of the entry conditions is that the third country national should not be considered to be a threat to public health, which has to be assessed on a case-by-case basis. In March 2020, the Commission called upon the Member States to apply a temporary travel restriction to all non-essential travel from third countries in order to coordinate practices in this regard and provided a list of derogations per category of persons that should be exempted from the travel restrictions 100 . Council Recommendation of 30 June 2020 101 also provided a list of third countries whose residents should be exempted from such general travel restriction. As set out above, some Member States went beyond the scope of that annex, authorising residents from other third countries to access the European Union. For this reason, on 22 February 2021 102 , Commissioners Johansson and Reynders sent a joint letter to the Member States reminding them of the rules agreed in the Recommendation. Nevertheless, and as indicated above, with state of play 16 April 2021, 13 Member States were open for non-essential travel from a wide group of third countries not listed in the annex.

2.3.How likely is the problem to persist?

While there are good chances to address the current COVID-19 pandemic with the world-wide vaccination programme, similar problems may occur at any moment in the future. This means that the absence of ‘ready to use’ contingency procedures and safeguards can again become a problem any time.

As regards the persistent border checks and the insufficient use of compensatory measures, the key to the evolution of the problem is the approach of Member States, which, on the one hand will not be sufficiently accountable for the choice of border checks at internal borders to address the identified threat and on the other hand may be sometimes concerned that the available compensatory measures could be considered as border checks in disguise.

Despite the efforts of the Commission over the last few years (see Box 3 below), hardly any progress has been achieved in the past. In particular, despite the efforts of the Commission to convince Member States to go back to a real Schengen area, the only (limited) step in this direction has been made by Germany that has reduced the scope of the long-lasting border checks at its internal borders, by lifting in spring 2018 such checks with regard to the air connections from Greece (that had been in place since November 2017).

Box 3– Actions of the Commission since 2015

The Commission retains the right to issue an opinion on the necessity and proportionality of any upcoming prolongations of border checks at internal borders, or even to launch infringement procedures. However, such a step does not guarantee that the core of the problem would be permanently addressed – i.e. the use of border checks rather as a first aid and not a last resort measure. Thus, without any intervention the situation at the internal borders will continue to be exposed to the changing national political climate, while a European approach which could take into account the overall interest of the Schengen area will continue to lack.

The ongoing efforts to improve the management of the external borders (operationalisation of EBCG, implementation of the new IT architecture with new systems ETIAS, EES, ECRIS-TCN and interoperability 103 of information systems reinforcing the relation between pertinent databases), as mentioned above and further explained in Annex 14, are expected to improve the controls at external borders and as such should help in rebuilding trust among the Member States. However, even a timely implementation of these new rules will not address the concerns of Member States linked to a perceived unsatisfactory level of security due to cross-border crime and terrorism. Moreover, based on the five years report on the functioning of the Schengen Evaluation Mechanism 104 it is confirmed that already now there are no major deficiencies in the management of the external borders.

Once the proposals accompanying the Pact on Migration and Asylum are adopted 105 , secondary movements of irregular migrants as well as ‘asylum’ shopping by asylum seekers should be better controllable than currently. Similarly, the terrorist threat should be better manageable thanks to the measures and steps identified in the EU Security Union Strategy as adopted in July 2020. However, it is not likely that secondary movements or terrorism will ever be entirely eradicated. Therefore, some Member States might continue to consider themselves as being more exposed to these challenges than other Member States, and hence, entitled to continue border checks at internal borders.

The planned modification of the API Directive and adoption of a code for police cooperation which are currently being explored and might lead to legislative proposals later this year 106 , would help to expand the available tools for compensatory measures to border checks at internal borders. These initiatives will be an important step to boost the use of alternatives to checks at internal borders. However, their adoption will provide only a partial solution as it will not tackle the differences between authorised measures related to the exercise of police powers and the use of new technologies and measures having effect equivalent to border checks at internal borders.

3.Why should the EU act?

3.1.Legal basis

This impact assessment concerns the measures adopted by the EU with regard to the absence of any controls on persons, whatever their nationality, when crossing internal borders, and also the measures concerning the checks to which persons crossing external borders are subject. This means that any legislative proposal following this impact assessment would be based on Article 77 (2)(b) and (e) TFEU.

3.2.Subsidiarity: Necessity of EU action

Action in the area of freedom, security and justice falls within an area of competence shared between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the subsidiarity principle is applicable by virtue of Article 5(3) TEU, according to which the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The conditions under which internal border checks can be reintroduced are regulated in the Schengen Borders Code. Any modification of these rules would require EU legislation. Furthermore, even where legislative action would not be considered appropriate, the integrity of the Schengen area and the fundamental right to free movement of all EU citizens require a coherent approach across the entire Schengen area, including on restrictions for non-essential travel to the EU at the external borders.

In particular, the objective of establishing a contingency planning for Schengen - including specific measures at internal and external borders - as well as limiting the number of cases of temporary reintroduction of border checks at internal borders as a truly last resort measure to the real minimum, cannot be sufficiently achieved by the Member States acting alone, and can be better achieved at the level of the Union. The Union may therefore consider taking measures to address the problems identified in this impact assessment, in accordance with the principle of subsidiarity.

3.3.Subsidiarity: Added value of EU action

EU action in response to the identified problems is expected to bring added value for the entire Schengen area, and therefore to its citizens, by reinforcing the overall security and trust among the Member States as the prerequisites of the area without controls at internal borders, as well as the ability of persons and goods to move freely across borders.

Such action is also expected to have tangible effects on cross-border regions which are much more advanced in terms of integration and rely on checks at internal borders being absent. As mentioned above, with 150 million persons living in cross-border regions, the measures adopted on the basis of this impact assessment are likely to have an added value in particular for this population, by protecting them from arbitrary reintroductions of border checks at internal borders as a first aid measure.

Thus, even under the assumption that the Member States are in the best position to determine the most appropriate measures to address an identified threat to internal security or public policy, the interests of these regions require a guarantee that the measures that have the strongest impact on their daily operation truly are a last resort measure.

4.Objectives: What is to be achieved?

4.1.General objectives

The general objective of any intervention is to ensure that persons and goods can move freely without unjustified or disproportionate hurdles within the Schengen area. To this end, identified problems, i.e. border checks at internal borders which become an unjustified hurdle to these movements (2.1.1) and non-uniform application of travel restrictions at the external borders undermining the trust and impacting the credibility vis-a-vis third countries (2.1.2), need to be addressed [ Figure 2 presents the logic of intervention to attain this objective].

Figure 2 - Intervention logic

4.2.Specific objectives

The identified problems concerning i) the border checks at internal borders which are long-lasting and applied against abstract threats or used as a ‘first aid measure’ (2.1.1), and ii) discrepancies in the application of travel restrictions at the external borders (2.1.2) call for solutions that would have the following specific objectives:

1.2.8.Creation of a contingency planning for Schengen

The objective is to create a procedure to be applied specifically in response to a crisis situation affecting all or several Member States at the same time. Such a procedure should allow for discussing the identified threat(s) at EU level and, in consultation with the other Member States, selecting the most appropriate measures to address them. The contingency planning should fully recognise the role of compensatory measures which should be encouraged as much as possible and privileged over border checks at internal borders.

A contingency planning for Schengen should first and foremost ensure a better coordination among Member States in a situation of a common threat to streamline the measures taken and provide an approach as uniform as possible, in order to increase the predictability for citizens.

It should also reflect that “[t]ravel measures that significantly interfere with international traffic may […] be justified at the beginning of an outbreak [of a pandemic], as they may allow countries to gain time, even if only a few days, to rapidly implement effective preparedness measures”, but “must be based on a careful risk assessment, be proportionate to the public health risk, be short in duration, and be reconsidered regularly as the situation evolves.” 107

1.2.9.Application of mitigating measures and specific safeguards for cross-border regions

This objective refers to the need for a quasi-automated application of safeguards, should the temporary reintroduction of border checks at internal borders be inevitable. It complements the objective concerning the creation of the contingency planning for Schengen. It should ensure that the impacts of border checks reintroduced at several border sections on the functioning of cross-border regions and, thus, on the Internal Market are limited. The mitigating measures refer in particular to the guidelines and recommendations developed in 2020 in relation to the COVID-19 crisis.

More concretely, once this objective is achieved, the good practices identified in the DG REGIO study referred to above for cross-border entities such as twin cities and cross-border workers should be used more widely (for examples see Annex 9).

1.2.10.Uniform application of measures at the external borders in particular in case of a threat to public health 

This objective refers to the need for a uniform application of extraordinary measures at the external borders where such measures are adopted in response to a threat to public health. To recall, in line with Recital 6 of the Schengen Borders Code, ‘Border control 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. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations.’ Therefore, any differences in the application of such measures at the external borders may jeopardise the trust on which the Schengen area relies. It also includes the need to ensure credibility vis-à-vis third countries and predictability of such measures for travel.

1.2.11.Increased use of compensatory measures to address the identified threats

The fourth specific objective is to ensure a high level of security within the Schengen area in a proportionate manner. To this end, less invasive measures than border checks at internal borders, such as police checks and the use of new technologies, should be privileged. Police checks in the border areas can be carried out also randomly as long as they do not become border checks in disguise.

1.2.12.Lifting the long-lasting border checks at internal borders

The fifth specific objective of any intervention would be to make the Member States concerned (see Table 1 above) lift border checks at their internal borders as soon as possible.

The costs of non-Schengen as well as the case studies mentioned earlier concerning the impact of border checks on cross-border regions demonstrate that the objective of restoring Schengen as the area without checks at internal borders remains valid and important for many EU citizens and residents.

5.What are the available policy options?

This Impact Assessment analyses the key policy options, including a baseline scenario, to address the problems identified in section 2 and match the objectives set out in section 4.

The policy options have been developed taking into account requests and recommendations from stakeholders, the experience with the negotiations of the 2017 proposal to amend the Schengen Borders Code (see Annex 2 and Annex 5), the new experiences from the COVID-19 crisis and the evidence available concerning the impacts on the cross-border regions. According to the DG REGIO Eurobarometer 2020 108 , 58% of Europeans think more influence of regional and local authorities will have a positive impact on the EU’s ability to solve problems. The policy options have also been elaborated while bearing in mind the difficulty to quantify the impact of internal border controls as explained in Section 2.1.3.

The negotiations of the 2017 proposal have shown that Member States are unlikely to accept modifications of the existing time-limits for unilaterally reintroduced border controls but rather view the reintroduction of such controls as their sovereign right. Additionally, the COVID-19 crisis has demonstrated that threats to public health can require uniform rules concerning travel restrictions for non-essential travel to the European Union by third country nationals and that non-binding ad hoc measures cannot assure such a result.

As an alternative to the baseline scenario three comprehensive approaches addressing all identified problems can be envisaged:

Option 1 proposes to adopt only soft law measures, together with the Schengen Strategy (soft law measures).

Option 2 consists in a targeted amendment of the Schengen Borders Code, accompanied by some soft law measures (mixed option based on the targeted amendment of the Schengen Borders Code and soft law measures).

Option 3 is more ambitious in terms of amending the existing rules. It presupposes that the decision on any measures necessary to address the identified threats would be taken at the EU level, either by requiring a prior decision of one of the EU institutions approving the reintroduction of border checks at internal borders or by simply removing the possibility to reintroduce border checks at internal borders 109 from the legislation, and thus imposing the use of compensatory measures (mixed option 2 based on a more fundamental amendment of the Schengen Borders Code).

5.1.What is the baseline from which options are assessed?

The baseline is a ‘no policy change’ scenario. The response to crisis situations such as a pandemic would depend on Member States and their willingness to cooperate with each other, based on the current rules in the Schengen Borders Code and other relevant EU legislation. This means that the know-how developed over the last year thanks to COVID-19 could be lost and that the EU would be exposed to a comparable lack of coordination in case of any future pandemic or any other Schengen-wide threat.

Without any action, the long-lasting border checks at some internal borders are very likely to continue, as experience shows that Member States are not considering lifting them. In particular, neither the action plan to lift these controls, contained in the 2016 Communication ‘Back to Schengen – a Roadmap’ 110 , nor the 2017 legislative proposal to amend the Schengen Borders Code 111 or the Recommendations of the Commission relevant for this topic succeeded in this respect.

As mentioned in the previous sections, the data concerning migration and terrorist attacks as well as the role of border checks in containing COVID-19 demonstrate that border checks are either not justified anymore (in view of the situation at the external borders as concerns the migratory pressure) or are not the most efficient in addressing the identified threats (terrorism, pandemic).

While the Commission has the possibility to issue an opinion on the necessity/proportionality of border checks at internal borders and to launch infringement proceedings, the problem that border checks are being used as a universal remedy for any security or other type of threat would remain. Moreover, given the number of Member States concerned and the complex implications involved, launching infringement procedures without any accompanying action needs to be measured against the results expected and the complex implications involved, including in terms of the necessity to continue building trust between Member States and with the European Commission.

5.2.Description of the policy options

The identified problems concerning i) the border checks at internal borders which are long-lasting and applied against abstract threats or used as a ‘first aid’ measure (2.1.1), and ii) the non-uniform application of travel restrictions at the external borders (2.1.2) can be addressed through three lines of action.

Option 1: Soft law

Under this option the ‘contingency planning for Schengen’ (ref. objective 4.2.1) would build on the existing legal framework and the know-how developed in 2020 and 2021 with regard to COVID-19. In order to give more predictability to stakeholders, the Schengen Strategy would recall the rules and principles that should apply in crisis situations in the Schengen area: the reintroduction of border checks only as a last resort measures, the possibilities concerning the use and intensification of use of compensatory measures within the territory, the obligation to consult other Member States as regards the reintroduction of border checks at internal borders and of loyal cooperation between the Member States as regards border checks in general. It would also provide an overview of the guidelines and recommendations adopted in response to COVID-19 as a baseline for the mitigating measures that should apply when reintroducing border checks, until they are updated or new guidelines and recommendations are adopted on an ad hoc basis (ref. objective 4.2.2). This element is particularly relevant for bringing more predictability to the industry particularly affected by the application of new measures at or in the area of the internal borders. In addition, the Strategy would recommend specific minimum measures to the benefit of the border regions where Member States reintroduce border controls at the internal borders.

As regards a better coordination of measures at the external borders (ref. objective 4.2.3) in crisis situations, the Strategy could identify, based on the experience related to COVID-19, the type of measures that can be taken with a view to the external borders, define the categories of essential travel to the EU and stress the importance of a uniform application of any such measures in order to protect the integrity of the Schengen area. It could also look into the guidelines for the type of evidence to be presented during border checks to demonstrate the essential character of the travel and deal with questions related to the transit of passengers. In this respect, the role of the IPCR could be enshrined. The IPCR would be consulted by the Commission. In case of new a pandemic, the IPCR could serve as a forum for Member States to coordinate the measures at the EU external borders.

Finally, as regards the objective of lifting the long-lasting border checks and better use of the compensatory measures (objectives 4.2.4 and 4.2.5) in the future, the Schengen Strategy could, on the one hand, take a stance on the necessity and proportionality of checks at internal borders by those Member States that have been prolonging border checks at internal borders on the same grounds for a certain period (e.g. at least 1]year), and on the other hand, could complement the 2017 Recommendation on proportionate police checks and police cooperation in the Schengen area, by addressing some frequently asked questions from the Member States as regards the use of police checks and new technologies in the border areas.

Table 4 – Mapping of objectives and measures under Option 1

Overall, this option would be a continuation of the current policy which is based on ad hoc reactions to crisis situations, while it would ensure that the know-how developed during COVID-19 is preserved and used, where appropriate, in the future. In this sense, it would respond to the calls from the stakeholders to ensure more predictability, but only partially. At the same time, as regards checks at internal borders this option would give another chance to make use of the existing tools, while further developing the existing compensatory measures in the form of the soft law. As such, it would respond to the call of some Member States to use the available tools to the fullest potential, before creating new tools 113 . However, this option is not likely to satisfy the other Member States which are directly affected by the long-lasting border checks at internal borders. Taking a clear position on the necessity and proportionality of the persisting border checks at internal borders in the Schengen Strategy would be also welcomed by the European Parliament that has been encouraging the Commission to take steps against the Member States abusing the current rules, although the Parliament is likely to expect more far-reaching action. Being addressed to the Member States, the proposed measures would not create any obligations for the industry or citizens, but could generate some benefits for them if Member States decided to adhere to the guidance.

Option 2: Mixed option (targeted amendment of the Schengen Borders Code combined with soft law)

This option implies legislative changes in the Schengen Borders Code to make contingency planning for Schengen more predictable and stable. The contingency planning (ref. objective 4.2.1) would consist of a new procedure allowing for a reintroduction of border checks at internal borders in response to any serious threat to internal security or public policy (including public health as in 2020) affecting several or all Member States at the same time (unlike the 2017 proposal when the Commission proposed the possibility to prolong border checks to 1 year by an unilateral decision of a Member State or 2 years by a decision of the Council, under the condition that the Member State concerned is confronted with a persisting threat and has adopted relevant commensurate measures to address this threat). While Member States would keep the right to reintroduce border checks at their internal borders, under this option any prolongation of such checks would require a decision by one of the EU institutions in order to ensure a coordinated approach once the immediate need has been taken care of. The overall duration of such border checks should, however, be limited in time.

The new procedure would be supported by additional safeguards concerning the use of mitigating measures (ref. objective 4.2.2), whenever the border checks are reintroduced by several Member States at the same time. For the sake of transparency, the guidelines and recommendations adopted in the course of 2020 in relation to COVID-19 could be gathered in the Practical Handbook for Border Guards 115 , in order to become a natural point of reference for border guards in a crisis situation. At the same time, the Schengen Borders Code could point (in the criteria for reintroduction of border checks) to the specific need to protect the border regions. These regions could e.g. be defined based on the approach adopted in the local border traffic Regulation 1931/2006 (for more information see Annex 15).

Finally, contingency planning would be complemented by a new provision in the case where the European Centre for Disease Prevention and Control (“ECDC”) detects the existence in one or more third countries of an [infectious] disease with epidemic potential. The provision would allow explicitly the Council to adopt a regulation, based on a proposal by the Commission, which would provide for a temporary travel restriction on non-essential travel into the EU for third country nationals residing in one or more third countries and exemptions from such restrictions. (ref. objective 4.2.3). The provision would define the categories of essential functions pursuant to which travellers who fulfil them would be allowed to get into the EU. In addition, the provision would specify that the Regulation would (i) identify the geographical areas or third countries from which travel would be subject to restrictions or exemptions of restrictions, (ii) lay down the specificities of the travel restrictions and possible exemptions, (iii) possibly define other categories of essential functions, and (iv) conditions applicable to travels into the EU, like e.g. testing or quarantine.

The Schengen Borders Code would also be amended in view of the objectives 4.2.4 and 4.2.5. This amendment would have as an objective to provide the Commission with better tools to assess the decisions of Member States to reintroduce border checks. It is in line with the finding of the public consultation, where the great majority of participants agreed or tended to agree on the importance of regular and comprehensive monitoring for the implementation of common rules and standards across the Schengen area 116 . To that end, the provisions on the notifications and reporting obligation would also be modified, to ensure that the Commission and other Member States affected by the measures have sufficient information on the situation at the internal borders (not only post factum, once border checks are lifted, as it is the case at present). The Roadmap accompanying the Schengen Strategy and indicating the steps to be taken in order to achieve the objective of the Strategy of making Schengen stronger and more resilient, could include the milestones for lifting the current border checks at internal borders. 

The Code would also be amended with a view to establishing a balance between the use of border checks and that of compensatory measures at internal borders. To that end, the amendment should bring more clarity to the concept that border control at internal borders shall only be reintroduced as a ‘last resort measure’. In this context, the intensification of police checks supported by new technologies would be explicitly mentioned as a necessary element of the risk assessment to demonstrate that border checks are indeed the last resort measure. Moreover, the catalogue of measures that can be used in the areas of internal borders without being considered as equivalent to border checks would be reviewed, to address some recurring questions concerning police checks and to reflect the upcoming developments, in particular as regards the use of advanced passenger information (API).

This proposal would replace the one tabled by the Commission in 2017, which did not receive sufficient support in particular in the Council. That proposal, in particular provided for a specific procedure (decision by the Council) where border checks exceeded a duration of 1 year.

Taking into account the discussions in 2017 on that proposal, the new proposal would move away from a general reform of the rules governing the reintroduction of border checks at the internal borders to a more targeted approach. Thus, the contingency planning will address specifically the situation of a threat affecting several Member States or even the entire Schengen area. For all other cases of reintroduction of border checks, the new proposal will limit itself to providing more clarity as to compensatory measures and taking into account new developments in this area, in particular the 2017 Commission Recommendation on proportionate police checks and police cooperation and newly developed technologies. A more detailed description of the changes that were proposed in 2017 is contained in Annex 17.

Table 5 – Mapping of objectives and measures under Option 2

Overall, this option would make an important step towards a contingency planning for Schengen by creating a new procedure for the reintroduction of border checks in crisis situations and providing a stronger legal basis for the use of mitigating measures and travel restrictions at the external borders. In this sense, this option provides for more stability and predictability to citizens and industry with the new built-in safeguards that the impact on the functioning of Schengen of any measures adopted to address the crisis situation will be limited. Furthermore, those citizens and regions that have been most affected because of their location will benefit from guarantees that their specific needs will be protected in case of a future reintroduction of internal border checks.

The expected better use of compensatory measures should assure more flexibility and better taking into account the local circumstances, thus limiting the impact on citizens. This development would be welcomed by those Member States which are exposed to the long-lasting border checks at the internal borders as well as by the European Parliament, if paired with increased monitoring that these measures are not discriminatory and respect fundamental rights. The Roadmap accompanying the Schengen Strategy would also be an important tool to restore the stability in the Schengen area. However, some Member States, in particular those carrying out border checks at their internal borders for years, can be expected to be critical about the proposed measures. This option would also respond to the call for changes coming from academia (see in this respect the Recommendations of the Meijers Committee - standing committee of experts on international immigration, refugee and criminal law - shared with the Commission and attached in Annex 4).

The proposed modifications would primarily address the Member States, including border guard authorities. The obligations for the industry will depend on the outcome of the ongoing discussion on the future of the API Directive which is outside the scope of this initiative.

Option 3: Mixed option 2 (more fundamental change of the SBC, combined with soft law elements)

The current paradigm of measures at internal/external borders taken in response to crisis situations would need to change if a reintroduction of border checks was not an option anymore. This option is based on the assumption that the relations developed in the EU based on the freedom of movement and the Internal Market are so complex that reintroducing border checks at internal borders does not make sense anymore given that, after all, it can only help pushing the identified problem to the neighbouring Member States (and in principle only for a limited period of time). Moreover, reintroducing border checks - as checks in fixed locations - does not seem sufficiently flexible and efficient.

Establishing a strictly European approach to response to threats to internal security or public policy, by bringing any decision on reintroducing border checks at internal borders to the EU level or simply removing the possibility to temporarily reintroduce border checks at internal borders from the Schengen Borders Code, would require taking a new approach to Schengen contingency including the mitigating measures (ref. objectives 4.2.1 and 4.2.2). Under this option, the contingency planning for Schengen would aim at identifying the best approach in each crisis situation, irrespectively of whether it affects one or more Member States. The decision-making process would be time-framed. In the absence of the possibility to (unilaterally) reintroduce border checks at internal borders, the Member States would need to choose from different measures related to different policy areas (travel restrictions, quarantine, intensified police checks, etc.). If provided at all, the reintroduction of controls at internal borders would be subject to a truly European procedure. As a general rule, such reintroductions would be based on a decision proposed and adopted by the Commission as an implementing act following the request by a Member State.

The above modifications would be accompanied by a new Schengen tool allowing to restrict non-essential travel into the EU in case of a serious threat to public health, applicable in an uniform manner at all external borders, as presented in option 2 (ref. objective 4.2.3).

The prohibition of border checks at internal borders, even in a situation of a serious threat to internal security or public policy as allowed under current rules, would automatically allow for achieving the objectives 4.2.4 and 4.2.5.

Table 6 – Mapping of objectives and measures under Option 3

Overall, this option is the most ambitious and the one that reflects best the idea of Schengen. However, the persistent use of border checks and the failure of the negotiations on the 2017 proposal of the amendment clearly demonstrate that the EU is not ready for such a radical step. In this sense this option risks leading to firm opposition from many Member States as it disregards the direct link between the possibility to reintroduce border checks at internal borders and national sovereignty.

This option also suffers from the limitations resulting from the legal basis of the Schengen Borders Code, which concerns measures at the borders and only refers to other measures applicable in border areas to ensure that these are not equivalent to border checks. This means that the application of other measures than border checks cannot be directly regulated in the Schengen Borders Code. The same applies to additional safeguards to avoid that the absolute ban on border checks at internal borders is circumvented by Member States by a discretionary use of compensatory measures, which would lead to border checks in disguise. Also the exchange of information on the actual use of compensatory measures would depend on the good will of the Member States.

In this sense, the solutions proposed under this option seem to be premature and the identified objectives may have better chances to be achieved by means of developing the alternatives to border checks as such, instead of prohibiting border checks.

This option also does not necessarily remove the unpredictability for citizens, related to the use of measures in relation to the crossing of the border, as the full overview of the measures other than border checks cannot be guaranteed under the Schengen Borders Code.

This option could satisfy part of the industry (airports), while the carriers (e.g. Flexibus) might be still dissatisfied by the time losses generated by unpredictable and possibly intensive checks.

Table 7 – Policy options and key measures

5.3.Options discarded at an early stage

Following the consultation of stakeholders, the Commission discarded the option of expanding carriers’ liability with regard to the intra-Schengen connections as a measure alternative to border checks at internal borders. Carriers’ liability has been set out in Article 26 of the Convention Implementing the Schengen Agreement 117 (CISA) and further developed in Directive 2001/51/EC 118 . It imposes on carriers certain obligations when transporting passengers from outside the EU into the Schengen area. In particular, it obliges them to ensure that all persons brought to the EU are in possession of relevant documents allowing for entry. It also obliges Member States to impose penalties on carriers who do not comply with this obligation. In recent years, some Member States imposed an obligation on carriers in national law to verify the documents of all passengers (for non-commercial reasons). These obligations have been part of the national measures aimed at addressing the threats to internal security or public policy, which at the same time justified the reintroduction of border checks at internal borders.

The decision not to look at expanding the liability of carriers has been taken in view of proportionality considerations: i) carriers’ liability is linked with the subsequent border checks by the border guards. Therefore, the verification of the compliance with any new rules concerning carriers’ liability at internal borders would require developing a specific system of verification; ii) the checks of documents carried out by carriers would be very limited (presence of documents/evident signs of counterfeit etc.) but would still require significant investments from the carriers 119 .

6.What are the impacts of the policy options?

1.3.Economic and social impacts

None of the options is expected to generate direct costs for the economy or the citizens compared to the baseline scenario because all the options aim at restoring the Schengen area as the area without checks at internal borders.

The analysis of the economic benefits of the proposed options may only rely on the assessment of the direct benefits related to how each of the options could contribute to bringing back the normality in the Schengen area by lifting the current border checks and preventing the reintroduction of border checks at internal borders in the future.

As regards the economic impacts of the considered measures at the external borders, some Member States particularly relying on foreign tourists may perceive them as potentially affecting their economy. However, given the overall positive impact of such measures on trust among the Member States, these potential costs would be counterbalanced by the benefits for the Schengen area (as other Member States could not justify the reintroduction of border checks at internal borders and/or travel bans within the Schengen area which equally affect the tourism industry of these Member States). In view of that, the assessment of the economic impact of the measures considered to address problem 2 (travel restrictions for non-essential travel to the EU) will depend on their effectiveness in preventing the reintroductions of border checks at internal borders due to a divergent application of the measures taken at the external borders. 

The soft law measures considered under Option 1 are not very likely to limit the duration of border checks and therefore the economic benefits of Option 1 would be rather limited. The measures proposed under this option are not likely to impact ‘the national approach’ of the Member States as regards taking the decision on reintroduction of border checks at internal borders in the future as explained in section 2.2.4. As the reintroduced border checks in particular affects cross-border regions, the risk of using border checks as a first aid measure could continue affecting the economic interests of these regions. Furthermore, the risk of a non-uniform application of travel restrictions at the external borders justifying possibly the reintroduction of border checks at internal borders could not be sufficiently prevented only with soft law measures (such as criteria for travel restrictions and guidelines for evidence in the Schengen Strategy) as the current experience with the implementation of Council Recommendation 2020/912 shows.

Option 2, with the new mechanism of contingency planning, bringing the response to crisis situations affecting several or all Member States to the EU level and reinforcing the use of compensatory measures, is likely to provide better and more reliable framework for exercising basic freedoms by preventing long-lasting border checks at internal borders in the future. As such, this option could be instrumental in limiting the negative economic impact of border checks at internal borders and thus the economic benefits of this option could be significant. Also the possibility of adopting an EU-wide travel restriction for non-essential travel applicable at the external borders in the situation of a public health threat could contribute to this objective by eliminating a likely ground for the reintroduction of border checks at internal borders.

Option 3, bringing any decision on reintroduction of border checks at internal borders to the EU level or abolishing border checks as such, may appear as having the biggest positive economic impact for the future, also relieving cross-border regions from carrying the bulk of a burden of measures that are meant to benefit the entire Member State. However, it also risks having the most unwanted side effects, as the non-transparent use of compensatory measures could lead to border checks in disguise. Nevertheless, the possibility to adopt EU–wide travel restrictions applicable at the external border in the event of a public health crisis could limit the need for compensatory measures and thus, also the risk of their discretionary use by the Member States.

Also as regards the social impacts, this analysis is focused on the benefits that each of the options can bring in terms of lifting border checks at internal borders and restoring trust between the Member States. From this perspective, the situation in the cross-border regions is of particular relevance. As underlined in the inception impact assessment and mentioned in section 2.1.3, there are 1.7 million workers in the EU crossing a border every day to go to their jobs and long waiting times at the border might discourage people from looking for cross-border opportunities on the labour market, reducing the pool of potential workers. The social benefits from the proposed measures would extend to EU citizens and all other persons legally residing in the EU. Moreover, the impact of the proposed measures on the entire EU population benefiting from the area without checks at internal borders would be positive, given that they diminish the risk of reintroduction of border checks.

Option 1, with no real contingency planning and a simple overview of the guidelines/recommendations building solely on the mitigating measures adopted in relation to COVID-19, is not likely to reduce the risk of reintroductions of border checks and as such is not likely to have any significant positive social impact.

Option 2, with the contingency planning for Schengen and the reinforced concepts of the ‘last resort measure’, should limit the use of border checks at internal borders. This option can be expected to yield more positive social impacts also due to the further development of the concept of ‘proportionality’ and a proper catalogue of mitigating measures to be included in the Schengen Handbook, which would guarantee certain minimum safeguards whenever the reintroduction of border checks is truly necessary and justified.

Finally, bringing to the EU level any decision on the use of relevant measures, including any instance of use of border checks at internal borders, as provided for in Option 3, could make the most visible difference, in particular for cross-border regions, provided that relevant safeguards could be developed to ensure that compensatory measures which the Member States would have to rely on instead do not become equivalent to border checks at internal borders. At the same time, bringing such decisions to the EU level or even abolishing the possibility of border checks at internal borders could significantly increase the pressure on the EU. As certain phenomena (secondary movements, cross-border criminality or even terrorist threats) cannot be eradicated completely, the EU might become an easy target for criticism driven by national debates.

6.2.Impacts on fundamental rights

All three considered options attempt to address problems which have an impact on the following rights: i) the right to family life of persons residing legally in the EU, ii) the right to work, to exercise the right of establishment and to provide services in any Member State, iii) the right to move and reside freely within the territory of the Member States, iv) the right to privacy and protection of personal data.

All three options considered recognise the possibility to make the exercise of the rights mentioned above more difficult, either by reintroducing border checks at internal borders or by using compensatory measures such as police checks in border areas. However, these possibilities already exist and are recognised as justified despite their impact on fundamental rights.

Thus, the impact of the specific options on fundamental rights may be measured according to the duration of limitations to the fundamental rights likely under each option.

From this perspective, the positive impacts of Option 1 on the rights listed above under points i) – iii) would be the most limited, given the overall limited efficiency of this Option in achieving the identified objectives. Compared to this, Options 2 and 3 would have both a positive impact on fundamental rights by limiting or eliminating the use of border checks at internal borders.

As compared to the status quo, in all options the overall impact on the fundamental rights of the possible increased use of compensatory measures to border checks at internal borders, such as police checks, would be positive, as it would concern a smaller number of persons, compared to border checks. However, the increased use of the compensatory measures also requires strong safeguards to protect against abuses, including where the promoted measures could become border checks in disguise. According to a study commissioned by the European Parliament, the discretionary power conceded to police officers when conducting checks on persons within the territory of a Member State in accordance with the current Article 23 of the Schengen Borders Code, has led to racial profiling and discriminatory selection of the persons being checked within the border areas. 120  It can therefore not be excluded that Options 2 and 3 which are based on an increased use of compensatory measures might increase this risk.

Regarding the protection of fundamental rights in case Member States take alternative measures, none of the options provides for a list of such possible measures and thereby provides for accompanying safeguards for fundamental rights. Nevertheless, whatever alternative measures they decide to take, Member States will have to ensure that these comply with the Charter of Fundamental Rights and all other relevant international law as laid down in article 4 of the Schengen Borders Code. In addition, the alternative measures may not harm the rights of persons enjoying the right of free movement under Union law (Article 3a) of the Schengen Borders Code), and the controls should be performed in full respect of human dignity (article 7 of the Schengen Borders Code). Finally, supplementary safeguards against increased risk of racial profiling or other phenomena in the process of targeting checks which could impede on fundamental rights, would stem from the current anti-discrimination obligations under EU and national law. Additionally, implementing options 2 or 3 should be accompanied by increased monitoring measures, e.g. in the context of Schengen Evaluations.

As regards the right listed under point iv) above – the right to privacy and protection of personal data –, according to the public consultation, 25.25% of the responding EU citizens consider that any automated control would be an unacceptable intrusion in their private life. Moreover, it has to be stressed that all measures of considered options in the context of surveillance and monitoring technologies shall be subject to the applicable EU data protection rules, irrespectively if they concern soft law measures or legislative proposals. In this sense, all options ensure an adequate level of protection to the citizens.

6.3.Other impacts

The options considered do not have any measurable impacts on the environment. The persistence of border checks may generate increased CO2 emissions caused by waiting cars at the borders, but no data are available in this regard. At the same time, the negative effects of long-lasting border checks on the cross-border mobility could compensate or counterbalance such effects by limiting the overall volume of emissions. For this reason, the impacts on the environment will not be taken into account in the overall assessment of the options.

As regards the impact on administration, the costs of alternative measures are difficult to calculate given that they concern the maintenance of law and order which are under the exclusive responsibility of the Member States. Therefore, the Commission does not have any data on this at its disposal.

Option 1, with soft law measures, does not create any new obligations for national administrations. The call for better coordination based on the know-how developed in relation to COVID-19 could lead to additional tasks in a future crisis situation. However, the positive effects of additional coordination should outweigh the burdens, as this could reduce the number of measures in place or allow for sharing the responsibility for specific actions with the authorities of the neighbouring Member States.

By maintaining the possibility to reintroduce temporarily border checks at internal borders but adding new obligations, such as a risk assessment, a standardised notification concerning the reintroduction of border checks at internal borders and an obligation to report regularly on these, Option 2 could have the biggest direct impact on the administration. However, as the measures proposed in this option should achieve an overall reduction in the use of border checks, the additional administrative burden should be limited.

As compared to Option 2, Option 3 - which does not require a risk assessment or reporting but presupposes that the administration would get involved in the coordination and monitoring of the compensatory measures - would have a moderate impact on the administration.

The measures concerning the external borders would have only a positive impact on national administrations which would follow a uniform approach, without having to negotiate bilateral arrangements with third countries.

Overall, the perception of the administrative impacts may vary from one Member State to another. In the Member States which in recent years have not resorted to border checks at internal borders to address crisis situations, a more European approach would not make any difference. However, for the Member States with long-lasting border checks at internal borders and which are underusing compensatory measures, the options considered may appear to increase the administrative burden, depending on the combination of the compensatory measures applied.

From the EU side, the new procedure of contingency planning for Schengen as well as a more structured approach to notifications/reporting obligations, may require some small adjustment of resources.

7.How do the options compare?

Table 8 – Comparison of the three policy options

1.4.Effectiveness

All three options are expected to have an impact in terms of managing the disproportionate limitations to persons and goods moving in the Schengen area, and thus are expected to help in achieving the identified general and specific objectives. However, their effectiveness is strictly linked to the likely difference they would make compared to the baseline scenario.

Measures under Option 1 are expected to have a low-to-moderate positive impact. This is because the legislative provisions concerning the reintroduction and application of border checks at internal borders would remain unchanged. This means that the risk of undue/disproportionate limitations could not be avoided in the future and Member States would continue having a lot of discretion both as regards the reintroduction of border checks at internal borders, and the application of mitigating measures.

Option 2, with the legislative modifications to the Schengen Borders Code, includes a set of measures that could have a highly positive impact. This concerns in particular a proper contingency planning for Schengen on the one hand and the development of concepts as ‘last resort’ and proportionality on the other, which are expected to influence the way the Member States decide on reintroduction and application of border checks at internal borders. Given that the possibility to reintroduce border checks at internal borders is perceived by some Member States as an aspect of their sovereignty, this option offers the most realistic approach to the problems identified, and the most effective way of achieving the objectives that have been identified.

Option 3 may also appear to have a positive impact by eliminating the possibility of unilateral decisions on reintroduction of border checks at internal borders. However, using this option would overhaul the current Schengen architecture where the Member States keep the right to decide on the reintroduce border checks as a last resort measure. Thus this positive result would lead at the same time to reluctance of the Member States to give up a power which is considered by many as an aspect of their sovereignty. Another drawback is related to the risk of insufficient transparency as to the measures applied by Member States to address identified threats, instead of border checks: eliminating the possibility to reintroduce border checks at internal borders unilaterally would be accompanied by eliminating the notifications to the Commission and the Council, leaving in force only the transparency obligations resulting from the ‘Strawberry Regulation’ 121 (i.e. to inform the Commission about any obstacle to the free movement among the Member States). In this sense, Option 3 cannot sufficiently guarantee that the four freedoms guaranteed by the Treaties will not be limited in a disproportionate manner.

1.5.Efficiency

The analysis of the main impacts shows that all three options are expected to bring benefits compared to the baseline scenario, without generating significant costs. The socio-economic impacts are decisive in this assessment, given the lack of measurable impacts on the environment or on administration. The impacts on fundamental rights are comparable between the three options, although Option 1 may have a slightly smaller positive effect in attempting to end the long-lasting measures at the internal borders.

Option 1 is expected to have the lowest efficiency in terms of socio-economic impacts. The proposed soft measures are not likely to prevent a discretionary use of border checks at internal borders in the future, which are generating significant costs for the economy and communities, in particular at regional level.

Option 2 is expected to be highly efficient because it creates new obligations for the Member States and stronger tools of control for the Commission (e.g. risk assessment, regular reports concerning the reintroduced border checks) which could increase the pressures on Member States (by means of an opinion on necessity/proportionality). 

Option 3 is expected to have a moderate efficiency because of the unpredictable impact of the compensatory measures used by the Member States instead of border checks and the risk that they could become border checks in disguise.

1.6.Proportionality

According to the principle of proportionality laid down in Article 5(4) TEU, there is a need to match the nature and intensity of a given measure to the identified problem.

Measures proposed under Option 1 do not impose any additional obligations on the actors. They comply with the boundary test as the continued effectiveness of the Schengen area depends on the concerted action of all the Member States.

However, the choice of the instrument (Communication of the Commission and other soft law measures such as guidelines/recommendations) does not give a sufficient guarantee that the identified objectives would be achieved. For this reason this option may raise concerns as to its proportionality.

Option 1, like Option 2, fully reflects the fact that a reintroduction of border checks at internal borders is widely considered as a legitimate measure of maintaining law and order.

Option 2, despite certain new obligations on the Member States related to the new provisions on contingency planning, risk assessments and reporting obligations, appears to be fully proportionate as the benefits resulting from better control over the use of border checks at internal borders would outweigh these burdens. This option also complies with the boundary test as the continued effectiveness of the Schengen area depends on the concerted action of the Member States. The increased use of compensatory measures such as police checks and the use of new technologies furthermore decreases the intensity of the invasion on citizens’ freedoms. As these measures can be used in a targeted manner, based on risk assessment and are subject to the number of safeguards under national law, they generally have a lesser impact on the freedom of movement than border controls which can concern all persons crossing the internal border. The proportionality of such measures is further safeguarded by the fact that the CJEU has limited the discretionary powers of Member States in carrying out border controls and police checks on their territory 122 .

Finally, the choice of the instrument fully corresponds to the identified objectives. Moreover, the proportionality of this option results also from the targeted character of the intervention in the Schengen Borders Code.

Option 3, like Option 2 can also be assessed positively as regards the choice of instrument.

However, it requires a much more significant intervention in the Schengen Borders Code compared to Option 2 and would eliminate one of the powers of the Member States dating back to the origins of Schengen cooperation (Convention Implementing Schengen Convention). It may also be perceived by some Member States as not compliant with the Treaties, as pursuant to Article 72 of the TFEU the Title referring to the area of freedom, security and justice “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In this sense, it may appear as going beyond that what is necessary to address the identified problems.

1.7.Coherence

The three options include measures that are coherent with the overall objective of the upcoming Schengen Strategy and other initiatives in this area intended to preserve the Schengen area and to make it stronger for the future. They are complementary to the parallel initiative to reform the Schengen Evaluation Mechanism which aims, among other things, to restore trust between the Member States and allow for a quick identification of deficiencies which may put the overall functioning of the Schengen area at risk.

Furthermore, all three options take due account of the possibilities offered by new technologies which are likely to revolutionise border management once the new IT architecture is deployed throughout the Schengen area. They also fully recognise and reflect the know-how developed during the COVID-19 pandemic making an effort to integrate it as much as possible in the process of managing crisis situations.

In broader terms, by bringing more predictability to the reintroduction of border checks at internal borders, the initiative may reinforce the effectiveness of the holistic approach proposed by the Commission on security and migration management.
Table 9 – Impacts of the Options

8.Preferred option

8.1.Option 2

Option 2 (mixed approach) is considered to be the preferred option. This choice reflects the best the cumulative score of this option as regards effectiveness, efficiency and proportionality. It draws the lessons from the past and, at the same time, is sufficiently ambitious. It respects the views of the Member States concerning the role of border checks in addressing serious threats while at the same time respecting also the legitimate expectations of the EU citizens and other persons benefiting from the absence of border checks at internal borders as to preserving the Schengen area as one of the main enablers of the freedom of movement of persons and goods.

8.2.REFIT (simplification and improved efficiency)

According to the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives with the objective to change existing EU legislation should aim to simplify and deliver stated policy objectives more efficiently (i.e. reducing unnecessary regulatory costs).

The analysis of impacts suggests that the preferred option should help to optimise the allocation of resources in case of crisis and to limit the costs of reintroduction of border checks at internal borders. However, it should be noted that the new obligation concerning the risk assessment, the new template for notifications of reintroductions and reporting obligations, as well as new tasks related to the use of compensatory measures, may lead to a situation where the overall burden on Member States will not be reduced, and in some cases even increased.

Additional obligations would arise for the EU institutions. This would concern creating the capacity to take substantiated decision at the EU level on the use of restrictions on non-essential travel into the EU at external borders but also to apply the contingency planning in case of need.

No impact on EU bodies and Agencies is expected.

However, these additional tasks should generate limited additional costs compared to the significant positive impact on managing the crisis situations putting the overall functioning of Schengen area at risk.

Table 10 – Impacts on simplification and administrative burden

+++ high, ++ medium, + low, 0 neutral and – negative.

The cost variations for Commission and EU bodies and agencies would be limited and partially offset by other measures.

9.How will actual impacts be monitored and evaluated?

The evaluation of the targeted amendment of the Schengen Borders Code as regards the temporary reintroduction of border checks at internal borders will depend on the information to be received from the Member States.

Table 11 includes a non-exhaustive list of quantitative indicators proposed to monitor the achievement of policy objectives identified in this Impact Assessment. These indicators reflect and define, in practice, the success of the policy options. However, as the proposed option concerns addressing exceptional situations, the regular measurement of the indicators is not possible.

Moreover, this unpredictability prevents setting fixed quantitative targets. However, it may be assumed that [within a year] from the adoption of the new rules the long-lasting border checks at internal borders should be lifted and the only border checks in place at that time will be carried out for a limited period of time under the current rules, or based on the new contingency planning procedure. Also, in the same period of time, the Schengen Handbook should be updated to provide an overview of relevant guidelines/recommendations to be applicable in case of temporary reintroduction of border checks at internal borders in several Member States.

The Commission website https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en informing the public on the current border checks at internal borders in place will remain the main IT tool allowing to monitor and evaluate the situation at the internal borders. Given the limitations of the legal basis to measures at the internal borders, the Commission cannot develop a separate tool on the use of compensatory measures such as police checks in the border areas. However, the conditions of use of the compensatory measures at the internal borders (spot police checks/new technologies) will be subject to monitoring in the framework of the Schengen Evaluation Mechanism, including any possible on-spot visits at the internal borders.

Table 11 – Success indicators

Annex 1: Procedural information

1.Lead DG, Decide Planning/CWP references

The lead DG is the Directorate-General for Migration and Home Affairs (DG HOME). The agenda planning reference is PLAN/2020/8753.

The Commission Work Programme for 2021 123 provides, under the heading ‘Promoting our European way of life’ a legislative initiative to amend the Schengen Borders Code.

2.Organisation and timing

The Secretariat-General set up the Inter-service Steering Group to assist in preparing the initiative on 10 December 2020. The following Directorates General representatives participated in the ISSG work: SJ, DG GROW, DG MOVE, DG RTD, DG HOME, DG JUST, JRC, DG SANTE and EEAS.

An Inception Impact Assessment was published on 8 January 2021 and was open to feedback from all stakeholders for a period of 4 weeks, until 5 February 2021 124 .

Within this framework, the impact assessment was subsequently prepared.

3.Consultation of the RSB

On 19 April 2021, the Directorate-General for Home Affairs submitted the draft Impact Assessment to the Regulatory Scrutiny Board, in view of a hearing that took place on 12 May 2021.

The recommendations of the Board were incorporated in the Impact Assessment Report as follows:

4.Evidence, sources and quality

The starting point for this Impact Assessment report was the DG REGIO ‘The effects of COVID-19 induced border closures on cross-border regions - An empirical report covering the period March to June 2020’ 125 and the ‘20 case studies covering the period March to June 2020’ 126

The Commission also relied on the studies on costs of non Schengen prepared by the European Parliament 127 , notifications of the Member States concerning the temporary reintroduction of border checks at internal borders and the reactions from the public manifested in the correspondence sent to the Commission.

To assess the impact of the different options, information on stakeholders’ views through the stakeholder consultation activities, as per Table 1, Annex 2, were a main source of information.

The quality of the data on duration and grounds of decisions on temporary reintroduction of border checks at internal borders is problematic. Although it relies on direct sources (Member States concerned), the level of detail and parameters used by the Member States to demonstrate the need of border checks varies a lot and is difficult to compare. Also the use of data concerning the impact of border checks at the cross-border regions was challenging because of the fact that very little hard data is available, as regards the actual cost of border checks at internal borders in particular during COVID-19 crisis, despite the serious effort made by the Commission to collect such data, as part of the preparation of this Impact Assessment.

5.Analytical Methods

To the extent possible, the Impact Assessment relies on quantitative analysis of the data available. This concerns in particular the use of border checks at internal borders. In the absence of quantitative data on the actual reintroduction of border checks at internal borders, the Impact Assessment relies on estimates concerning the quantitative aspects of reintroduction of border checks at internal borders in the scenario of a permanent reintroduction of border checks at internal borders. As a large part of the issues at stake do not have a quantitative but rather a qualitative profile, the qualitative evidence has been used to a much larger extent, in particular to identify trends and the correlation between different factors and measure the different options’ impact.

Annex 2: Stakeholder consultation

The stakeholders’ consultation took place between November 2020 and February 2021 and encompassed, primarily, targeted stakeholders by way of the Schengen Forum and thematic workshops divided according to the topic and stakeholders involved. It included Member States, European Parliament, carriers and NGOs. This approach appeared preferable given the very different interests and issues at stake for the different stakeholders. The Commission prepared discussion papers to steer the discussion in the different meetings.

1.    Schengen Forum

Under the New Pact on Migration and Asylum, the Commission announced the establishment of a dedicated Schengen Forum, involving the relevant national authorities such as Ministries of Interior and (border) police at national and regional level in order to stimulate more concrete cooperation and more trust among Member States to support the well-functioning of Schengen.

The 1st Schengen Forum took place on 30 November 2020. At the forum, EU institutions and Member States provided political guidance on the future of Schengen, agreeing that there is a need of taking steps to preserve Schengen. The Conclusions of the Chair from the meeting are attached as Annex 5

2.    Minutes: Expert meetings on measures allowing for a more effective cooperation within the Schengen Area, 14 and 22 January 2021

Attendance: The meetings were attended by experts from a) NGOs and airport and airline representatives b) Members of the European Parliament and their representatives, c) Schengen Member States and Schengen Associated Countries, d) carries’ representatives and Commission services (DG HOME).

2.1. Explanation of the meeting’s objective (DG HOME)

In an initial statement, the chair recalled the objective of the meeting, the collection of views on the future cooperation within the Schengen Area in view of the adoption of the Schengen Strategy and a proposal for an amendment to the Schengen Borders Code (SBC). The focus lies on the main challenges facing Schengen, particularly, the current COVID-19 pandemic and the reintroduction of internal border controls by Member States, in some cases exceeding the legal time limits.

2.2. Introduction to the topics

Schengen governance: Following the unsuccessful 2017 proposal for a revision of the SBC, the COVID-19 pandemic made a new approach to Schengen governance necessary. The Commission’s inception impact assessment for the future of the SBC foresees four options: 1. No changes to the SBC and the 2017 Recommendation on police cooperation. 2. Adoption of non-legislative measures, probably a new Recommendation on the use on police checks and the use of new technologies. 3. Legislative amendment of the SBC on alternatives to border control, particularly on Article 23, regarding the use of police power. 4. Legislative abolition of internal border controls.

COVID-19 response: The Schengen Strategy and the amendment to the SBC are also an opportunity to reflect on the COVID-19 response. Given that there is no legal basis for the Commission to act in this field, the Commission’s current reaction to the COVID-19 pandemic is based on soft law, i.e. recommendations and guidelines. It is now time to reflect on a permanent framework for future comparable cases of a common threat for all Member States, e.g. pandemics.

2.3. Exchange of views

2.3.1. NGOs and airport and airline representatives (14.01.2020)

A) Schengen governance

Regarding the introduction of internal border controls, one NGO called for more evidence, particularly on the risk of open borders compared to the costs and the effectivity of internal border controls. Another NGO underlined the importance of alternatives to internal border controls, holding that Member States sometimes rely on over-policing and securitization of borders. The Commission clarified in this regard that police checks, as alternative measures, may not have a similar effect as border controls.

The human rights NGOs raised concerns about fundamental rights violations, including push-backs, at the internal and external borders. Some of them expressly called for a holistic approach on Schengen and the Common European Asylum System (CEAS). One NGO raised concerns regarding the use of bilateral readmission agreements to circumvent the applicable rules, stating that enhanced police checks could aggravate the issue. The Commission clarified that readmission agreements with other Member States are in line with the principle of non-refoulement and recalled the focus of the meeting on the internal dimension of Schengen.

Some NGOs pointed out that a new system requires safeguards to prevent the undermining of human rights and freedom of movement in the name of security, including a solid accountability mechanism. The Schengen evaluation mechanism (SchEval) should be strengthened, particularly regarding fundamental rights. Also more involvement of the civil society in SchEval missions at internal borders was requested by one organisation. One NGO pointed out that police checks, as alternative measures, must include the necessary protection safeguards for persons who express the intention to seek asylum. Another NGO noted that the interaction between the SBC and international legal frameworks, e.g. the law of the seas, must be taken into account. Also concerns about different data protection standards were raised, which the Commission clarified referring to the GDPR and the complementarity of data protection and new technologies.

The representatives of airlines and airports opposed the idea of introducing obligations on carriers to check identity documents. This would be a delegation of Member States’ responsibility on a third party, slow down the processes and incur costs. If any such rules should apply, all types of carriers should be subject to the same measures. One representative underlined the industry’s openness for new technologies, but emphasized that these should be in line with international standards, e.g. IATA. Possible new elements of the SBC should be integrated into the EES and ETIAS.

B) COVID-19 response

The representatives of airlines and airports favoured more coordination under the Commission to travel restrictions at EU level (quarantine and testing), a common regime for vaccination and travel and coherence between intra-EU travel and travel into the EU. Given the high impact on airlines and airports, more information and dialogue with DG HOME, DG SANTE and DG MOVE would be appreciated. The industry fears that the worst is still ahead (cf. new virus variants, slow vaccination process) and requested forecasts and scenarios for vaccination rates in order to prepare. Furthermore, the elaboration of a specific plan for pandemics/crisis of this magnitude (cf. Council request to DG MOVE for a pandemic plan for freight), and a greater focus on intelligent solutions were proposed. The Commission clarified that the SBC and any possible amendment only applies to the possible reintroduction of checks at internal borders, not to restrictive measures such as quarantining and testing.

The Commission’s guidance on the implementation of asylum in the context of COVID-19 was welcomed by one NGO. Such guidance should also be a key element in future scenarios.

2.3.2. Members of the European Parliament and their representatives (14 January 2021)

A. Schengen governance

Half of those who took the floor criticised the Commission for not enforcing the current rules on internal border controls properly and requested stricter enforcement in the future. One participant explicitly asked about the Commission’s handling of Member States that refuse to comply, referring to a monitoring mechanism. The Commission explained that the fact that a considerable number of Member States that previously complied with the rules for decennia now stopped complying suggests that there might be a general inadequacy of the rules for current challenges. Therefore, initiating infringement procedures might not be the solution, and the Commission needs to consider adapting the rules.

One participant criticised the time needed to process Schengen evaluations. The Commission pointed out that the SchEval mechanism is currently under revision and informed about the possibility to comment on the impact assessment until 1 February 2021.

Some participants called for stricter rules on reintroductions, particularly stronger justification requirements, a quicker involvement of the Council and a stronger role of the Commission. Another proposal was the introduction of new safeguards with each prolongation of internal border controls. Furthermore, the lack of a common understanding of border controls and the necessity of clearer rules leaving less room for interpretation were raised.

One participant addressed the need for enhanced police and judicial cooperation, while another called for more rules on police checks within the territory. Some participants asked for clarifications regarding the difference of border controls and police checks. The Commission pointed out that the idea was to offer Member States a stronger legislative basis for the use of police checks at the borders, allowing them to intensify police power instead of reintroducing border controls. Police checks are more flexible and easier to apply while border controls are only related to the crossing of the border.

One participant warned about the risk of racial profiling in the context of the European databases. 

Fundamental rights violations and push-backs at the external and (despite the CEAS and the Dublin rules) internal borders were criticised by one participant, who called for a coherent system. The Commission underlined that the rules to comply with fundamental rights when applying the SBC are in place (Article 4 SBC) and that the new screening proposal includes a monitoring mechanism (despite the current opposition of a number of MS).

B) COVID-19 response

One participant considered that the best interest of the whole Schengen area be given more weight than individual interests of Member States and called for a clarification of the rules and criteria. Another participant considered that, despite some leeway, MS should bring evidence, as it is not clear how border controls and travel restrictions have affected or prevented the spread of the virus.

2.3.3. Schengen Member States and Schengen Associated Countries (14 January 2021)

A) Schengen governance

A number of Member States expressed their preference of a holistic approach to Schengen, including e.g. the external borders, migration and the CEAS. Some Member States also highlighted the dependency of the absence of internal border controls from effective controls at the external border. In this regard, the Commission clarified that the external dimension is subject to the Pact on Migration and Asylum, not to the Schengen Strategy.

There was broad consensus among Member States against a general abolition of the possibility to reintroduce internal border controls, holding that police controls are no alternative. Some Member States also underlined the need of independency of the decision to reintroduce internal border controls. Given the general rejection of a possible abolition of internal border controls, a considerable number of Member States expressly referred to “additional measures” instead of “alterative measures”, the term used by the Commission. The idea to establish an intermediate level between internal border controls and their absence, e.g. in the form of intelligence driven checks police checks at the borders, was in general supported.

Some Member States underlined that police checks and border controls must be differentiated clearly. In this regard, also the Commission’s guidance on police checks was mentioned. Some Member States referred to the question of feasibility of police checks under their national law. Also the need for clear rules was addressed. Few Member States suggested focusing on cross-border police and criminal justice cooperation. In this regard, the need for sufficient flexibility for regional and bilateral police cooperation was underlined.

A considerable number of Member States asked to consider the intra-Schengen use of technology currently employed only at the external borders. Some Member States proposed the use of API and PNR as well as checks against EU databases at internal borders. Further proposals included the use of PNR for police checks and intra-EU flights and a feasibility study on the use of PNR for other means of transport. In this context, the Member States underlined that the use of new or additional technologies at the internal borders would need to be in line with EU legislation, particularly the GDPR. Two Member States also proposed to intensify the exchange of information at the internal borders similar to the one in place at external borders.

The Dutch AMIGO Boras System, a camera system that recognizes license plates and additional risk indicators to identify travellers, was given major attention, with some Member States considering a possible expansion of the system within the Schengen area.

Most of the Member States that addressed carriers’ liability in their interventions were generally open to such possibility, considering that it could contribute to the effectiveness of border controls. Few Member States were more sceptical, arguing that it would pose a disproportional burden to carriers. The necessity of an impact assessment was raised by two Member States.

B) Covid-19 response

The Member States acknowledged the overall good cooperation at EU level, but recognized that it started too late. While Member States agreed that the cooperation should be further strengthened, they diverged on how it should look like. Both the ICPR Council and the Commission were considered as suitable coordinating bodies. The essentiality of common epidemic criteria and regularly ECDC updates on the epidemic situation was also raised.

Another question on which Member States diverged was whether the cooperation should be consolidated into secondary legislation. While some Member States favoured a soft law approach, considering the need for flexibility and the different situations of Member States, others would prefer common legislation.

2.3.4. Carries’ representatives (22 January 2021)

A) Schengen governance

The carriers’ organisations welcomed the Commission’s recommendations and guidelines related to internal border controls during the COVID-19 pandemic, particularly on the green lane policy and underlined the need for common rules and their harmonised application. One representative noted that besides the transport of cargo, carriers also faced problems regarding the repositioning of personnel.

One carriers’ representative acknowledged that the use of technology could facilitate the work of border services, holding that new technology solutions must be coordinated by clear rules and may not lead to delays or increased waiting time. A potential challenge would be the compliance with the GDPR, since not many companies are specialised in storing such data. The Commission pointed out that railway operators already participate in the PNR system of information sharing in some Member States. However, this information could also support police checks, which are currently considered as possible alternative to border controls.

One representative asked for a clarification on the extent of such liability. The Commission explained that the concept of carriers’ liability regarding external borders is based on the Schengen Convention and obligates carriers to verify if passengers hold the necessary documentation (passport and visa). If carriers fail to carry out such verifications, they can be subject to sanctions, and, if a passenger is refused entry into the Schengen area, need to ensure the return transport. A possible intra-Schengen implementation of carriers’ liability would include basic checks of passengers’ travel documents. It would not impose any obligations on freight transport operators.

The only representative of passenger transport present was sceptical about the introduction of an intra-Schengen carriers’ liability and pointed at the necessity to distinguish between different means of transport. Rail staff has neither the authority nor the equipment to carry out border checks. As negative example of a comparable obligation, the representative referred to the carriers’ obligation in one Member State to check the passengers’ compliance with the requirement to have a negative PCR test without the rail staff having the necessary competence nor the means to enforce such obligation. The Commission reminded about the special position of railways in the context of carriers’ liability.

B) COVID-19 response

Carriers saw a need for further harmonisation of the COVID-19 response and the rules governing border controls, particularly on the interpretation of the term of “essential personnel”. The term should be interpreted broadly, in line with operational needs, e.g. covering besides pilots also on-board engineers, and in coordination with border and migration authorities and civil aviation organisations. One carriers’ representative underlined that such harmonisation should also cover the neighbouring countries. Another concern was the timely information, particularly on upcoming measures by the MS, also in the view of liability and passenger rights.

Various carriers’ representatives indicated that it is difficult to estimate the costs caused by the internal border controls at this point. The Commission underlined that also data from 2015 onwards, when internal border controls were introduced in response to terror threats and irregular migration would be useful for the Commission’s impact assessment.

3.    Public consultation

In addition, a public consultation was carried out. It was launched on 19 January 2021, with the deadline for contributions set at 16 March 2021.

The Commission published the Inception Impact Assessment on its website 128 for four weeks, but only received limited feedback, with four comments only: one from France, one from Croatia, one from Ukraine and one anonymous.

Table 1 – Stakeholders’ consultation

Analysis of the public consultation “Communication from the Commission to the European Parliament and to the Council: Towards a stronger and more resilient Schengen Area”:

The public consultation “Communication from the Commission to the European Parliament and to the Council: Towards a stronger and more resilient Schengen Area” had the objective to collect feedback from citizens, civil society and other stakeholders with view on the adoption of a Strategy on the future of Schengen. During the publication period from 19 January 2021 to 16 March 2021, 157 replies were registered. 99 participants were EU citizens (63.06%), 40 non-EU citizens (25.48%), 6 business associations (3.82%; from Germany, Belgium, Luxembourg and Russia), 4 company/business organisations (2.55%; from Germany, Slovakia, Sweden, Ukraine), 4 public authorities (2.55%; two national authorities/agencies from the Netherlands, two local authorities from Germany and Poland), 2 trade unions (1.27%; from Germany and Spain), 1 academic/research institution (0.64%; from Hungary) and 1 NGO (0.64%; from Belgium).

The public consultation was based on a questionnaire with 10 multiple choice questions on the frequency (Q1) of and reasons (Q2) for travel within the Schengen area (before the Covid-19 pandemic), the participants’ view on the Schengen Area being one of the EU’s biggest achievements, being beneficial for social and/or economic reasons and having more advantages than disadvantages (Q3), the need for reinforcement of certain elements of the Schengen framework (Q4), the contribution of these elements to the security of the external Schengen borders (Q5), the EU coordination during the Covid-19 pandemic (Q6), the impact of reintroduced internal border controls on the citizens’ lives (Q7), the substitution of border control through non-systematic alternative measures, such as police checks (Q8), the intensified use of modern technologies with view on their impact on private life (Q9) and the importance of monitoring of the common Schengen rules (Q10). The questionnaire did not include free text fields for additional comments. However, with direct reference to the public consultation, Airport Council International (ACI) Europe and Fragomen Europe Immigration Taskforce send their written considerations by email.

Results: With 88.55% (139 replies), the large majority of all replies received, was given by participants in their capacity as private persons, of which 71.22% were EU-citizens and 28.78% non-EU citizens. Most answers were received from German (33, 23.74%) and Ukrainian (32, 23.02%) citizens, followed by Slovakians (11, 7.91%) and Italians (10, 6.47%). The reason for the large share of Ukrainian participants is not apparent.

Overall, the most important reason for travelling of private persons is tourism (85,61%), followed by family/relationship reasons (43.88%) and business (other than commuting) (35,25%). 14.39% of the responding EU and non-EU citizens are regularly commuting between Schengen States for study or professional reasons. In general, the reasons for travel in the Schengen Area are comparable for EU-citizens and non-EU citizens with the only exception of commuting between Schengen States for study or professional reasons. The share of commuting non-EU citizens (22.50%) is more than twice as high as the one of commuting EU-citizens (11.11%).

The great majority of EU and non-EU citizens sees the Schengen Area positive: 82.01% of the EU and non-EU citizen agree that the Schengen Area is one of the biggest achievements of the EU (12.23% tend to agree), 85.61% consider the Schengen Area as good for economic/social reasons (7.92% tend to agree) and 79.14% consider that the advantages of Schengen outweigh the disadvantages (12.23% tend to agree). All statements were seen slightly more positive by non-EU citizens, who did not at all “disagree” or “tend to disagree” with the proposed positive statements.

With regard to the development of the Schengen framework, particularly the elements the participants would like to see reinforced, 82.83% of the EU citizens indicated the coordination in crisis situations, including common threats such as pandemics, 62.63% the removal of obstacles to cross the internal borders, particularly long-lasting reintroductions of internal border controls and 51.52% the control and compliance with the Schengen rules. The replies of the non-EU participants revealed the same pattern, but overall, less non-EU participants attributed importance to the reinforcement of the three proposed elements. 62.59% of the EU and non-EU citizens consider that the implementation of these elements will increase the security at the external borders, finally strengthening the Schengen Area (16.55% disagree). Being asked if a coordination at EU-level of measures applicable at the external borders of the EU in response to common threats such as a pandemic is beneficial, 90.91% of the EU citizens agreed and only 5.05% disagreed. With 72.50% the share of agreement among non-EU citizens is considerably lower (12.50% disagreement).

41.01% of the participating EU and non-EU citizens affirmed that they have not been affected by internal border controls, while 25.18% indicated that they had to wait and their trip was delayed. 38.85% hesitated to travel or decided not to travel due to the internal border controls. The share of Non-EU citizens being unsure about required documents was with 42.50% almost twice as high as the share of EU-citizens (21.21%), which might also have translated into the higher share of Non-EU citizens being hesitant to travel or deciding not to travel (47.50% compared to 35.35%).

72.66% of the EU and non-EU citizens agreed that border controls at internal borders should be substituted, whenever possible, by non-systematic alternative measures, such as police checks and modern technologies (14.39% disagree). The share of EU citizens agreeing with the substitution of border controls by alternative measures (74.75%) was slightly higher than the share of non-EU citizens (67.50%). While a clear majority (73.38%) of the private persons did not see problems with automated control measures in the internal border areas, provided that they are reasonably regulated by law and fully respect data protection rules, more than one fourths of EU citizens (25.25%) opposed such measures, considering them as “an unacceptable intrusion” in their private life. Still considerable 12.50% of non-EU citizens shared this view.

Only a slight majority (52.52%) of EU and non-EU citizens fully agreed that a regular and comprehensive monitoring of the respect of common rules and standards across the Schengen area, with the involvement of EU institutions and all countries concerned, is important to ensure and foster trust in the implementation of those rules. Still, 35.97% tend to agree to this statement.

6,37% of the replies (10 replies) were received by business associations and company/business organisations. Despite the considerable small number of replies, these reflect a quite uniform point of view. Business associations and company/business organisations see the Schengen Area very positive. All participants fully agreed that the Schengen Area is one of the EU’s greatest achievements and that the Schengen Area is good for economic/social reasons. Still 90% fully agree that the Schengen Area has more advantages than disadvantages (the remaining 10% tend to agree). While all business associations and company/business organisations travel for professional reasons within the Schengen Area, the share of commuters for business or study reasons is with 40% more than twice as high as for persons responding in private capacity.

All business associations and company/business organisations see a need for reinforced action in removing difficulties in crossing the internal borders between the Schengen States, in particular by lifting long lasting reintroductions of border controls at internal borders, 80% for better coordination in crisis situations, including pandemics, and 70% for a reinforced monitoring of the Schengen rules. Overall, the demand for action lies clearly above the one from private persons. Furthermore, contrarily to private persons, the responding businesses attributed greater importance to the removal of long-term difficulties in crossing internal borders as to the crisis coordination at EU level.

The impact of the reintroduced border controls hit businesses harder than citizens in their private capacity with almost all business associations and company/business organisations having suffered either from delays when transporting goods across the borders (60%) or from other reasons (60%). 50% of the participants had to wait and were impacted by delayed trips. Moreover, the share of participants being hesitant to travel or deciding not to travel, was with 80% more than twice as high for business associations and company/business organisations as for private persons. Furthermore, 70% of the participating business associations and company/business organisations were unsure regarding the documents needed to cross the border. The huge impact of the border controls on businesses is reflected by the business associations’ and company/business organisations’ view on alternative measures: 80% would favour non-systematic alternatives to border checks and no business association or company/business organisation would oppose automated control measures in the internal border areas, provided they are reasonably regulated by law fully respecting data protection rules..

Furthermore, 90% of the business associations and company/business organisations considered the coordination at EU-level of measures applicable at the external borders of the EU in response to common threats such as a pandemic as beneficial.

While only 40% of the business associations and company/business organisations fully agree on the importance of the monitoring of the respect of common rules and standards across the Schengen area for the trust in the implementation of these rules and standards, the remaining majority still tends to agree.

The data received by the public authorities, trade unions, the academic/research institution and the NGO mirrored this positive image of Schengen. Due to the very low number of participants (1 to 4, which equals between 0.66% and 2.55% of all replies) and the subsequent lack of comparable data, the data received is not analysed in detail.

Overall, the public consultation shows:

-The Schengen Area is in general perceived very positively, as well by EU and non-EU citizens as by businesses and other stakeholders. Businesses tend to see the advantages as well as the remaining challenges of Schengen more clearly than private persons.

-Businesses are more impacted by internal border controls than private persons with almost all responding business having suffered from the consequences of internal border controls. To some extent, this might also be linked to a greater share of businesses relying on cross-border commuting (40%).

-While business are very open to the use of alternative measures to border control, such as the use of new technologies, a considerable share of private persons (21.58% of all participants in private capacity and even 25.25% of EU citizens) is concerned about the impact such measures would have on their privacy.

-Particularly businesses see a clear need for development of the Schengen framework. All consulted businesses hold that more action is required regarding the lifting of long-lasting border controls (vs. 62.63% of private persons). While private persons attributed more importance to the coordination of crisis response, e.g. in pandemics, the majority (62.63%) still considered that there is a need of reinforced action to remove barriers to border crossings at the internal borders.

Outside the direct scope of the public consultation, but in response to it, two contributions were received by email.

Airport Council International (ACI) Europe considers that a revision of the Schengen Borders should give the Commission the necessary tools and powers to ensure that restrictions of the free movement of persons are only introduced as last resort measure, are limited in time and proportionate. More specifically, ACI Europe points at the additional costs of conducting separated border controls for passengers on Schengen-internal flights, as it is currently required, highlighting that airports are not designed to accommodate such a second category of border checks on a permanent basis. Therefore, ACI Europe suggests that a legislative amendment of the Schengen Borders Code should, in the case of reintroduced internal border control, allow passengers on Schengen-internal flights to follow a common flow and common border control together with passengers on international flights.

The Fragomen Europe Immigration Taskforce points at difficulties, business travellers face when entering the Schengen Area and suggests the introduction of unified visa application procedures, additional guidance by the EU regarding the exemption of business travellers from Covis-19 related travel restrictions, particularly the introduction of a uniform confirmation document for business travel, which should reduce the discretionary power by the Member States’ consulates and border guards to establish if a business trip is considered as essential travel, and the introduction of a simplified short-term visa application process for frequent business travellers into the Schengen Area. These suggestions concern the visa policy as well as the modalities regarding restrictions of the freedom of movement under Union law, which are not subject to the considered options for the development of the Schengen Borders Code.

Annex 3: Who is affected and how?

1.    Practical implications of the initiative

The initiative concerns managing exceptional and crisis situations. Therefore, the proposal has a capacity to affect the following stakeholders:

–Member States (Public Authorities, Border Guards, Police);

–EU institutions (European Parliament, Council and Commission);

–EU citizens and other persons residing in the Schengen area, in particular in the cross-borders regions;

–Carriers

The immediate effect of the proposal could be visible in the cross-border areas, should the national authorities decide to lift current checks at internal borders.

2.    Summary of costs and benefits

Annex 4: Relevant inputs and studies

Ref. Ares(2020)720051 6 - 30/11/2020

The European Commission emphasizes in its new Pact on Migration and Asylum that effective management of EU external borders is a key element of a Schengen area without internal borders. To ensure a 'well-functioning Schengen area', the Commission announces, in section 4.4, the presentation of a new Strategy on the future of Schengen, including 'initiatives for a stronger and more complete Schengen'. In this contribution, the Meijers Committee focuses on four subjects which need further development in this new strategy:

1.    The temporary reintroduction of internal border controls.

2.    The Schengen evaluation mechanism.

3.    Controls in the territory.

4.    The enlargement of the Schengen area.

Ref. 1. Temporary reintroduction of internal border controls

In response to refugee and migration flows in 2015 and 2016, but also in reaction to terrorist attacks in several European cities, Members States have repeatedly reintroduced internal border controls, with reference to the provisions of the Schengen Borders Code (SBC). Since 2015, these controls have been extended several times. This has resulted in a quasi-permanent reintroduction of controls at parts of the internal borders. In 2020, the COVID-19 pandemic triggered both the reintroduction of new internal border controls, as well as the prolongation of existing internal border controls.

This practice undermines the essence of the Schengen space as an area without internal border controls, provided for in Article 3(2) TEU, Article 67(2) TFEU and the provisions of Protocol (No 19) on the Schengen acquis. It is also in clear contravention of the provisions of the SBC that regulate in secondary law the exceptions to the absence of border controls. These provisions emphasize that the reintroduction of internal border controls is only allowed as a measure of last resort and of a temporary nature and if necessary to counter threats to public policy or internal security, respecting the principle of proportionality.

This note is part of a series of the Meijers Committee commenting on the Commission's New Pact on Migration and Asylum, COM(2020) 609 final. Please find all our comments on www.commissie-meiiers.nl.

Notwithstanding legitimate concerns of the Member States for public policy or internal security, and more recently public health, the extent and duration of the reintroduction of internal border controls is neither proportionate nor necessary. In addition, the Court of Justice of the European Union (CJEU) has clearly held that a Member State cannot simply invoke Article 72 TFEU, without proving that recourse to that article is necessary for the exercise of its responsibilities for the maintenance of law and order or internal security. With respect to Article 4(2) TEU, the CJEU has held that the reference to national security goes beyond objectives of combating crime in general, even serious crime, and of safeguarding public security. Threats to national security can be distinguished, by their nature and particular seriousness, from the general risk that tensions or disturbances, even of a serious nature, affecting public security will arise.

The Meijers Committee regrets that there are no (publicly) available reports informing the Council and Parliament, and no Commission opinions on the reinstatement of internal border controls, as required under Article 33 SBC. The Commission should provide the necessary information which allows other Member States, the EU institutions and the general public to monitor compliance of the reinstatement of controls at the internal borders with Union law.

Furthermore, the Meijers Committee regrets the lack of enforcement action by the Commission. This has resulted in legal uncertainty for Union citizens and third-country nationals alike, as well for national administrative and judicial authorities. This is evidenced by the preliminary reference of the Austrian Landesverwaltungsgericht Steiermark on the reintroduction of controls at the Austrian internal borders. The Meijers Committee stresses that the enforcement of EU law in a core area of European integration is too important to be left to private persons in individual cases.

Finally, in relation to the recent reinstatement of border controls by different Member States in response to the COVID-19 pandemic, the Meijers Committee notes that the SBC lacks an explicit legal basis for the reintroduction of border controls on the ground of public health.

In light of the above, the Meijers Committee urges that a new Strategy on the future of Schengen clarifies the rules for the reinstatement of controls at the internal borders and amends the SBC to this effect.

Recommendations

•    Exhaustively regulate the rules and procedures for the temporary reintroduction of internal border controls.

•    List and define in more detail the possible grounds for the reintroduction of internal border controls. 

•    Add 'public health' as a ground for the reintroduction of internal border controls, applying the definition as provided in Article 2(21) SBC and referring to the WHO list of infectious or contagious parasitic diseases.

•    Provide for a special procedure in case of prolonged threats to public order, national security or public health, and to include in this procedure:

- sufficient safeguards to ensure that the reintroduction of internal border controls does not go beyond what is absolutely necessary;

- the obligation for Member States to submit, after an initial period of reintroduction of border controls, a motivated request to the Commission for further prolongation;

- the obligation for a Member State to, after a fixed number of prolongations of internal border controls, submit a motivated request to the Council for further prolongation, subject to (reverse) qualified majority voting.

•    Clearly state whether and if so under what conditions different grounds for the reintroduction of internal border controls may be applied cumulatively and consecutively.

•    Clearly define the monitoring and information obligation of the Commission and Member States concerned, including a clear time frame.

•    Make clear that controls within the territory of a Member State are to be given priority over the reinstatement of internal border checks.

Ref.2 Schengen Evaluation Mechanism

The Meijers Committee welcomes the further development of the Schengen Evaluation Mechanism (SEM) to ensure the correct and full implementation of Schengen rules and to strengthen mutual trust between Member States. Effective implementation and enforcement of the Schengen rules is key to the confidence and success of the area without internal border controls.

The Meijers Committee encourages the Commission to make the results of the review of Council Regulation (EU) No 1053/2013 based on Article 22 of that Regulation publicly available. Already at this stage, based on the experience in practice with the current mechanism, it wishes to put forward a number of suggestions for improvement.

Recommendations

•    Include a general evaluation per Member State of compliance with the Schengen acquis rather than on selected topics only.

•    Improve the overall transparency of the SEM, with due respect for sensitive information.

•    Incorporate fundamental rights compliance and involve the Fundamental Rights Agency.

•    Enable the Commission to determine the composition of the evaluation teams. 

•    Include EU experts from relevant bodies and agencies in evaluation teams, in addition to Commission and Member State experts, such as Frontex, as well as an independent expert appointed by the European Parliament.

•    Allow evaluation teams to be allowed to pay unannounced on-site visits to Member States, instead of having to give a 24-hour notice as is currently required.

•    Improve the follow-up to the findings of the SEM by providing for shorter and clearer deadlines on the evaluators and the Member States being evaluated.

•    Empower the Commission rather than the Council to adopt recommendations on the basis of evaluations.

•    Facilitate access of individual Members of the European Parliament to the evaluation reports. Ensure that the Commission informs both the Council and the European Parliament of the findings of the evaluation teams, as well the recommendations based thereon.

•    Ensure that the Commission makes the findings of the evaluation teams, as well as the recommendations based thereon, publicly available, with due respect for sensitive information.

Ref. 3 Checks within the territory

Both in the New Pact on Migration and Asylum and in the Communication on the approach for restoring the freedom of movement and lifting internal border controls in relation to COVID-19, the Commission points at the use of 'controls based on risk assessment or local police measures' as a viable alternative to internal border controls. 130 It also refers to the use of 'new technology and smart use of IT interoperability' to make controls 'less intrusive'. 131 These proposals are in line with earlier recommendations and guidelines. 132

The Meijers Committee emphasizes that the use of police checks and new technologies should not result in restrictions to travel for EU citizens and third-country nationals within the Schengen territory, since this would undermine the very goal of the Schengen cooperation: seamless travel within an area without internal border controls. Interoperability, or the interlinked usage of EU large-scale databases (SIS, Eurodac, VIS, EES, ETIAS and ECRIS-TCN) and the access to law enforcement authorities to administrative data on third-country nationals, coupled to new technologies of biometrics and surveillance, may result in a 'multiplication of borders', meaning that persons may be controlled at any time at any place: at the external borders, but also within the territory.

Furthermore, the application of police controls within the Schengen area should be in full compliance with national and European data protection standards and non-discrimination legislation. The discretionary powers of police and immigration authorities inside the territory and within internal border areas, combined with the possibility to check aforementioned data systems, creates a risk that third-country nationals or those considered to be, putatively or by Union law, 133 will be more often stopped for identification and comparison of their (biometric) data. Consequently, they may be confronted with disproportionate or arbitrary barriers of entry, expulsion, or law enforcement measures. Research carried out in the Dutch border area identified a clear risk of discrimination and racial profiling by police and border guards when controlling individuals during mobile spot checks. 134

In earlier comments, the Meijers Committee has expressed its concerns with regard to the use and possible discriminatory effects of large-scale databases such as SIS, VIS, ETIAS and ECRIS-TCN, and the framework of interoperability, not only at the external borders but also within the Schengen territory. 135 In this regard, the Meijers Committee refers to the report on the use of digital border technologies by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance published in November 2020. In this report, the Rapporteur expresses her concerns about the discriminatory and exclusionary effects of these digital technologies without necessary human rights safeguards. The report also describes how these measures are deployed to advance existing racially discriminatory and xenophobic ideologies, in part due to wide-spread perception that migrants and refugees are to be considered as per se threats to security. 136

The CJEU has in a series of cases circumscribed the discretionary power of the Member States to exercise border controls in its territory. 137 Nevertheless, questions remain as regards the role of private companies in carrying out checks on behalf of the Member States. In the Touring Tours case these checks were equated with controls within the Member States. However, this does not do justice to the specificity of these controls, being carried out by private operators in another Member State than the one that prescribes these controls.

The Meijers Committee recommends a better regulation and delimitation of police powers of the Member States in border areas. Importantly, these controls should be carried out in full compliance with EU law, including respect for fundamental rights and freedoms. To this effect the Commission should submit proposals, either of a legislative nature or in the form of guidelines.

Recommendations

•    Further define the notion of 'checks within the territory', to delineate them from border controls.

•    Further regulate the conditions under which 'checks within the territory' can take place in border areas.

•    Specify that, to the extent to which police controls take place in border areas and are aimed at the prevention of irregular migration or illegal border crossing, the Charter of Fundamental Rights applies.

•    Codify the guidance provided by the case law of the CJEU and specify more clearly what is required in terms of intensity, frequency and selectivity to distinguish police controls from border controls.

•    Regulate the position of private companies when obliged to carry out controls within the territory on behalf of the Member States.

•    Prevent racial profiling, invasive checks, and the abuse of discretion by requiring national authorities to develop guidelines, training programs, accessible complaint mechanisms and a system of consistent monitoring and evaluation of controls taking place within border areas.

•    Ensure access to effective judicial protection for individuals with regard to actions and decision-making based on foreign SIS alerts or risk assessment, but also information as stored in other EU databases, as Eurodac, VIS, ETIAS, and ECRIS-TCN, not only at the external borders but also within the territory, including internal border areas.

•    Ensure that any use of technological means complies fully with applicable national and EU data protection and non-discrimination legislation.

4. Enlargement of the Schengen Area

A new Strategy on the future of Schengen will need to address the position of Schengen candidate countries, i.e. those Member States that have acceded to the European Union, but in relation to whom there has not yet been a Council Decision taken to lift internal border checks.

Already, the Schengen evaluation mechanism plays an important role in the assessment of the readiness of the Schengen candidate countries. This role could be reinforced. Currently there are four Member States that have been declared technically ready by the Commission to join the Schengen area. A number of Member States has however blocked the adoption of a unanimous Council Decision that would allow for full accession to the Schengen area, based on political concerns in relation to the respect for the rule of law and corruption in the Member States concerned.

The Meijers Committee would like to point out that despite resolutions from the European Parliament calling for an end to this situation, the exclusion of these countries from the Schengen area continues to this very day. 138  The extended stay of these countries in the 'Schengen waiting room' has a number of undesirable consequences.

The current situation leads to a de facto dual external border, a duplication of border controls, and the primacy of security measures over facilitating borderless travel in Europe. Schengen candidate countries have increasingly been allowed to participate in Schengen developing measures, notably the interoperability initiative, without benefitting from the lifting of internal border checks. This means that a number of Member States, their citizens and the third-country national legally present in their territory, are denied the benefits of the objective laid down in primary law, namely the establishment of an area without internal borders.

Schengen candidate countries guard their external borders in line with EU standards, including the relevant parts of the SBC, and are assisted in doing so by the European Border and Coast Guard Agency (Frontex). The CJEU has made it clear that participation in measures related to the external borders presupposes participation in the underlying Schengen rules, more specifically the lifting of checks at the internal borders.

Finally, this situation creates considerable uncertainty as to the legal regime that is applicable at the external borders of the Member States that fully participate in Schengen and border a Schengen candidate country, given that internal and external borders have been defined as mutually exclusive.

Recommendations

For this reason, the Meijers Committee recommends that a new Strategy on the future of Schengen includes:

•    Clear rules governing the accession to the Schengen area once a candidate Member State has acceded, comparable to the Copenhagen criteria for accession to the European Union itself.

•    A path towards accession for the current Schengen candidate countries, based upon binding rules and strict conditionality.

•    A clearly defined role for a revised Schengen evaluation mechanism and the vulnerability mechanism under the European Border and Coast Guard Regulation (Article 13) in order to access independently and objectively fulfillment of the criteria for accession to Schengen.

•    Clarification in the SBC as to the applicable legal regime at the at the external borders of a Member State fully participating in Schengen and the external borders of a Schengen candidate country.

5. Concluding remarks on recent developments

Finally, the Meijers Committee would like to briefly comment on the call put forward in November 2020 by the French President Macron for a reform of the Schengen area and closer cooperation in the area of internal security.

The Schengen flanking measures have always had a dual nature. On the one hand they comprise measures regulating visa, borders, migration and asylum, on the other they concern police cooperation and judicial cooperation in criminal matters. Although both deserve to be included in a new Strategy for the future of Schengen, it should be emphasized that the primary objective of both types of flanking measures has always been to facilitate free travel and lift internal border controls.

Although Member States may have legitimate concerns of public order and national security, it is highly doubtful that these can be addressed through the return of internal border controls. Border controls have a highly symbolic value, but are seldomly the most effective means in the fight against terrorism and organised crime, as the recent terror attacks taking place in Vienna and Paris have sadly shown. These attacks took place despite the existence of controls at the internal borders. In this regard much more emphasis should be placed on effective cooperation between law enforcement staff and the accurate and timely exchange of information, which, however should at all times respect the basic principles of criminal justice and fundamental rights.

As regards the call for a reinforcement of the external borders, the Meijers Committee recalls that a recent amendment to the founding Regulation of Frontex has already significantly reinforced the powers of this agency in the field of border management and return. It is submitted that all efforts should be on the implementation of this new mandate, and that no further legislative changes should be proposed before a thorough evaluation of the new legal framework has been carried out.

Annex 5: Conclusions of the Chair – Schengen Forum 30 November 2020

Schengen is one of the biggest achievements of European integration and is cherished by European citizens. Schengen has been seriously put to the test this year in particular and Member States have the responsibility to rebuild trust in the area of freedom, security and justice and ensure that citizens can fully reap the benefits. A strong Schengen area is essential for the well functioning of the internal market and for the post-Covid economic recovery. The following six conclusions can be drawn from the 1st Schengen Forum:

1.The Schengen Forum highlighted the need for joint action in a number of areas to strengthen the political and operational governance of the Schengen area so as to make it more efficient, more resilient and reinforce mutual trust. Targeted technical consultations will take place over the coming months in order to further deepen the issues raised during the Forum and a 2nd Schengen Forum will be organised in Spring 2021, ahead of the adoption by the Commission of a new Schengen Strategy.

2.On the specific issue of external borders, the Forum discussions highlighted the need to focus on the implementation of 1/ the new IT-architecture and interoperability of the external border management systems; and 2/ the standing corps of the European Border and Coast Guard. The implementation of both these elements requires strong political support as well as adequate human and financial resources. There is also a need to reinforce procedures to ensure that nobody enters the EU territory without being checked.

3.Concerning the Schengen evaluation mechanism, the importance of increasing its effectiveness and efficiency was noted so as to bring concrete improvements on the ground and increase trust. The Commission’s five year report, the study recently published by the European Parliament and the outcomes of the Forum will all feed into the forthcoming legislative initiative to revise the legal framework.

4.As regards crisis management, we need a contingency plan to neutralise or at least limit the risk that possible future crises may again disrupt the area of free movement. It is important to react in a quick and coordinated manner whenever a serious crisis calls for it. The EU needs to have strong rules and procedures in place to handle such situations.

5.As regards controls at internal borders, the Forum underlined that these must be truly measures of last resort. Existing controls need to be lifted as soon as possible. In order to do so successfully, current alternative measures should be reinforced and additional ones should be considered: reinforcing police cooperation in the Union and exchanging relevant data between law enforcement authorities were some of the key measures mentioned. The best use of new technologies must be ensured for the protection of our citizens and for the facilitation of travel. Existing technologies should be applied to their full and additional joint work in the area of security research is desirable. Technologies must of course be managed in a transparent manner and in a manner compatible with data protection rules.

6. The EU should update its legal framework which is today no longer fully fit for purpose. The current legal rules applicable to the management of the external borders and to the temporary reintroduction of controls at the internal borders should be reviewed taking into account the lessons learnt. A legislative initiative revising the Schengen Borders Code will be presented in this respect.

Annex 6: List of reintroduced border checks at internal borders

Member States’ notifications of the temporary reintroduction

of border control at internal borders

pursuant to Article 25 and 28 et seq. of the Schengen Borders Code