Rules on crossing EU borders

KEY POINTS

The code sets out the rules that govern:

• checks on persons on external borders;
• entry conditions; and
• the conditions for the temporary reintroduction of border controls at internal borders in the Schengen area (a border-free area comprising 25 EU Member States, along with Iceland, Liechtenstein, Norway and Switzerland) in the event of a serious threat to public policy or internal security.

To whom does it apply?

The Schengen Borders Code lays down the rules that apply to any person crossing the external borders of the Schengen area. Cyprus is not yet a full member of the Schengen area but must follow the rules concerning controls at the external borders. Bulgaria and Romania joined the Schengen area on 31 March 2024 as far as their air and maritime borders are concerned, although border controls remain in place at the two countries’ land borders.

External borders

When crossing external borders, nationals of non-EU countries not benefiting from the freedom of movement under EU law are subject to thorough checks in accordance with the conditions of entry into the country, including systematic consultation of relevant databases such as the Schengen information system (SIS) and verification of the visa information system (VIS) if the person is subject to the visa obligation.

In the event of an intended stay on the territory of a Schengen country, for no more than 90 days in any 180-day period, non-EU nationals must:

• be in possession of a valid travel document and visa, if required;
• justify the purpose and the conditions of their intended stay and prove that they have sufficient means of subsistence;
• not be the subject of an alert in the SIS for the purpose of refusing entry; and
• not be considered a threat to EU public policy, internal security, public health or the international relations of any of the Member States.

Entry of a third-country national (a non-Schengen or non-EU national) who does not benefit from the freedom of movement under EU law may only be refused by a decision taken by a relevant national authority stating the precise reasons for the refusal, and this decision may be subject to appeal.

Rules for local border traffic at external land borders

Regulation (EC) No 1931/2006 lays down a local border regime at the EU’s external land borders and introduces a local border traffic permit for the purposes of nationals of neighbouring non-EU countries resident in border areas.

Internal borders

In the area without internal border controls (meaning the Schengen area with the exception of Bulgaria, Cyprus and Romania), any person of any nationality may cross any internal border without border checks being carried out. Nevertheless, national police authorities have the right to carry out police checks, including in the border area, subject to specific rules and limitations.

Countries that are part of the area without internal border controls must remove all obstacles to smooth traffic flow at road crossing points at internal borders, and in particular any speed limits not exclusively based on road-safety considerations or surveillance technologies used to address threats to public security or public policy.

Temporary reintroduction of internal border controls

Amending Regulation (EU) 2024/1717 sets out the conditions for reintroducing and prolonging checks at internal borders. Where, in an area without border control, there is a serious threat to public policy or internal security in a Member State, that Member State may, only as a measure of last resort, in exceptional situations, reintroduce border controls. Such a serious threat could arise from:

• terrorist incidents or threats, and threats posed by serious organised crime;
• large-scale public health emergencies;
• an exceptional situation characterised by sudden large-scale unauthorised movements of non-EU nationals between the Member States, putting a substantial strain on the overall resources and capacities of well-prepared competent authorities and that is likely to put at risk the overall functioning of the area without internal border control, as evidenced by information analysis and all available data, including from relevant EU agencies; and
• large-scale or high-profile international events.

Member States are permitted to extend internal border controls based on security risks or migratory flows for a period of 6 months. They may renew the reintroduction with periods of 6 months to a maximum of 2 years. They must notify any reintroduction and explain the necessity and proportionality of the decision to reintroduce internal border control. When a reintroduction is scheduled to last 12 months, the European Commission must issue an opinion as to whether the measures are proportionate and necessary. In the case of a major exceptional situation in relation to a serious persistent threat the Member States may exceptionally renew to reintroduction of border controls beyond this 2-year period with a maximum of two times 6 months.

Where the Commission establishes that there is a large-scale public health emergency that affects several Member States, putting at risk the overall functioning of the area without internal border control, it may propose that the Council of the European Union adopt an implementing decision authorising the reintroduction of border control by Member States, including any appropriate mitigating measures to be introduced at the national and the EU level, where the available measures (in Articles 21a and 23 of Regulation (EU) 2024/1717) are not sufficient to address the large-scale public health emergency.

Where the Commission establishes that there are exceptional circumstances putting the overall functioning of the area without internal border control at risk as a result of persistent serious deficiencies relating to external border control, insofar as those circumstances constitute a serious threat to public policy or internal security, it may propose that the Council adopt a recommendation that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders.

Schengen evaluation mechanism

Each Member State’s implementation of Regulation (EU) 2016/399 is reviewed at least every 5 years by means of an evaluation mechanism¹ in accordance with the rules laid down in Regulation (EU) 2022/922 (see summary).

Systematic checks against relevant databases at external borders

Since April 2017, systematic checks against relevant databases are to be carried out on EU / EEA (European Economic Area) / Swiss citizens at the external borders of the Schengen area, in addition to the existing checks already undertaken on non-EU nationals.

These rules were introduced in response to the terrorist attacks that have hit various Member States in recent years and should help in particular to address the threats of EU-born terrorist fighters going to or returning from abroad. The checks take place both upon entry to and upon exit from the external borders. The checks are made against databases such as the SIS and Interpol’s database on stolen and lost travel documents.

Entry/exit system

Regulation (EU) 2016/399 takes account of the adoption of Regulation (EU) 2017/2226, which created a centralised system for the registration of entry and exit data (entry/exit system – EES) in regard to non-EU nationals coming for a short stay, once it enters into force. The current stamping of the travel document on entry and exit will be replaced by the electronic recording of the entry and exit directly in the EES. The use of automated border control systems for persons subject to registration in the EES has been integrated. Schengen countries are also able to establish national facilitation programmes to allow pre-vetted non-EU nationals to benefit on entry from exceptions from certain aspects of border checks. These new rules will apply only from the date of entry into force of the EES.

The European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice is already responsible for the operation of the three EU information technology systems essential for safeguarding the Schengen area and border management. These are:

• Eurodac (the EU asylum dactyloscopic database, which allows fingerprint comparisons),
• the SIS, and
• the visa information system.

Under Regulation (EU) 2017/2226, the agency was given the additional task of developing the EES and ensuring it is well managed.