(-1)

The creation of an area in which the free movement of persons across internal borders is ensured is one of the main achievements of the Union. The normal functioning and strengthening of such an area, which is based on trust and solidarity, should be a common objective of the Union and the Member States which have agreed to take part in it. At the same time, it is necessary to have a common response to situations seriously affecting the public policy or internal security of that area, or parts thereof, by allowing for the temporary reintroduction of border control at internal borders in exceptional circumstances and as a last resort, while strengthening cooperation between the Member States concerned.

(1)

In an area where persons may move freely, the reintroduction of border control at internal borders should remain an exception. The reintroduction of internal border control should be decided only as a measure of last resort, for a limited period of time and to the extent that controls are necessary and proportionate to the identified serious threats to public policy or internal security.

(1)

In an area where persons may move freely, the reintroduction of border control at internal borders should remain an exception. As the free movement of persons is affected by the temporary reintroduction of internal border control , it should be reintroduced only as a measure of last resort, for a limited period of time and to the extent that controls are necessary and proportionate to the identified serious threats to public policy or internal security. Any such measure should be withdrawn as soon as the underlying grounds for it cease to exist.

(1a)

Migration and the crossing of external borders by a large number of third-country nationals should not, per se, be considered to be a threat to public policy or internal security.

(2)

The identified serious threats can be addressed by different measures, depending on their nature and scale. The Member States have at their disposal also police powers, as referred to in Article 23 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (8), which, subject to some conditions, can be used in the border areas. The Commission Recommendation on proportionate police checks and police cooperation in the Schengen area (9) provides guidelines to the Member States to that end.

(2)

The identified serious threats can be addressed by different measures depending on their nature and scale. While it remains clear that police powers are different in their nature and purpose from border control, the Member States have at their disposal those police powers, as referred to in Article 23 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (8) which, subject to some conditions, can be used in border areas. The Commission Recommendation on proportionate police checks and police cooperation in the Schengen area (9) provides guidelines to the Member States to that end.

(2a)

Before resorting to the reintroduction of border control at internal borders, Member States should give precedence to alternative measures. In particular, the Member State concerned should, where necessary and justified, consider using more effectively or intensifying police checks within its territory, including in border areas and main transport routes, on the basis of a risk assessment, while ensuring that those police checks do not have border control as an objective. Modern technologies are instrumental in addressing threats to public policy or internal security. Member States should assess whether the situation could be adequately addressed by way of increased cross-border cooperation, both from an operational point of view and from that of information exchange between police and intelligence services.

(4)

However, experience has shown that certain serious threats to public policy or internal security , such as cross-border terrorist threats or specific cases of secondary movements of irregular migrants within the Union that justified the reintroduction of border controls, may persist well beyond the above periods . It is therefore needed and justified to adjust the time limits applicable to the temporary reintroduction of border control to the current needs , while ensuring that this measure is not abused and remains an exception, to be used only as a last resort. To that end, the general deadline applicable under Article 25 of the Schengen Borders Code should be extended to one year.

(4)

However, experience has shown that there is rarely a need to reintroduce border control at internal borders for periods of longer than two months. In exceptional circumstances only, certain serious threats to public policy or internal security might persist beyond the maximum periods of six months currently authorised for the reintroduction of border control at internal borders . It is therefore necessary to adjust the time limits applicable to the temporary reintroduction of border control, while ensuring that this measure is not abused and remains an exception, to be used only as a last resort.

(4 a) A

ny derogation from the fundamental principle of free movement of persons should be interpreted strictly and the concept of public policy presupposes the existence of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

(5)

In order to guarantee that these internal border controls remain an exception, Member States should submit a risk assessment concerning the intended reintroduction of border control or prolongation thereof . The risk assessment should, in particular, assess for how long the identified threat is expected to persist and which sections of the internal borders are affected, demonstrate that the prolongation of border controls is a last resort measure and explain how border control would help in addressing the identified threat. In case of internal border control going beyond six months, the risk assessment should also demonstrate retrospectively the efficiency of the reintroduced border control in addressing the identified threat and explain in detail how each neighbouring Member State affected by such prolongation was consulted and involved in determining the least burdensome operational arrangements.

(5)

In order to guarantee that these internal border controls are a measure of last resort and remain an exception, Member States should submit a risk assessment concerning the intended prolongation of border control beyond two months . The risk assessment should, in particular, assess for how long the identified threat is expected to persist and which sections of the internal borders are affected, demonstrate that the prolongation of border controls is a  measure of last resort , in particular by showing that any alternative measures have proven or are deemed insufficient, and explain how border control would help in addressing the identified threat. The risk assessment should also demonstrate retrospectively the efficiency and effectiveness of the reintroduced border control in addressing the identified threat and explain in detail how each neighbouring Member State affected by such prolongation was consulted and involved in determining the least burdensome operational arrangements. The Member States should retain the possibility to classify, where necessary, all or parts of the information provided.

(5a)

Whenever the reintroduction of internal border control is proposed for specific planned events of an exceptional nature and duration, such as sporting activities, the duration of such control should be very precise, circumscribed and linked to the actual duration of the event.

(6)

The quality of the risk assessment submitted by the Member State will be very important for the assessment of the necessity and proportionality of the intended reintroduction or prolongation of border control. The European Border and Coast Guard Agency and Europol should be involved in that assessment.

(6)

The quality of the risk assessment submitted by the Member State will be very important for the assessment of the necessity and proportionality of the intended reintroduction or prolongation of border control. The European Border and Coast Guard Agency, Europol , the European Asylum Support Office, the European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice and the European Union Agency for Fundamental Rights should be involved in that assessment.

(7)

The power of the Commission to issue an opinion under Article 27(4) of the Schengen Borders Code should be modified to reflect the new obligations on the Member States related to the risk assessment, including the cooperation with Member States concerned. When border control at internal borders is carried out for more than six months, the Commission should be obliged to issue an opinion. Also the consultation procedure as provided for in Article 27(5) of the Schengen Borders Code should be modified in order to reflect the role of the Agencies (European Border and Coast Guard Agency and Europol) and focus on the practical implementation of different aspects of cooperation between the Member States , including the coordination, where appropriate, of different measures on both sides of the border .

(7)

The consultation procedure as provided for in Article 27(5) of the Schengen Borders Code should be modified in order to reflect the role of the Union Agencies and focus on the practical implementation of different aspects of cooperation between the Member States.

(8)

In order to make the revised rules better adapted to the challenges related to persistent serious threats to public policy or internal security, a specific possibility should be provided to prolong internal border controls beyond one year . Such prolongation should accompany commensurate exceptional national measures also taken within the territory to address the threat, such as a state of emergency. In any case, such a possibility should not lead to the further prolongation of temporary internal border controls beyond two years .

(8)

In order to make the revised rules better adapted to the challenges related to persistent serious threats to public policy or internal security, a specific possibility should be provided to prolong internal border controls beyond six months on an exceptional basis . Such prolongation should accompany commensurate exceptional national measures also taken within the territory to address the threat, such as a state of emergency. In any case, such a possibility should not lead to the further prolongation of temporary internal border controls beyond one year .

(8a)

The necessity and proportionality of reintroducing internal border control should be balanced against the threat to public policy or internal security triggering the need for such reintroduction, as should alternative measures which could be taken at national or Union level, or both, and the impact of such control on the free movement of persons within the area without internal border control.

(9)

The reference to Article 29 in Article 25(4) should be modified with a view of clarifying the relation between the time periods applicable under Article 29 and Article 25 of the Schengen Borders Code.

(10)

The possibility to carry out temporary internal border controls in response to a specific threat to public policy or internal security which persists beyond a year should be subject to a specific procedure.

(10)

The possibility to carry out temporary internal border controls in response to a specific threat to public policy or internal security which persists beyond six months should be subject to a specific procedure requiring a Council recommendation .

(11)

To that end, the Commission should issue an opinion on the necessity and proportionality of such prolongation and, where appropriate, on the cooperation with the neighbouring Member States.

(11)

To that end, the Commission should issue an opinion on the necessity and proportionality of such prolongation . The European Parliament should immediately be informed about the proposed prolongation. The Member States affected should have the possibility to make observations to the Commission before it issues its opinion .

(13)

The Council, taking account of the Commission's opinion, may recommend such extraordinary further prolongation and where appropriate determine the conditions for cooperation between the Member States concerned, with a view to ensuring that it is an exceptional measure, in place only for as long as necessary and justified, and consistent with the measures also taken at the national level within the territory to address the same specific threat to public policy or internal security. The Council recommendation should be a prerequisite for any further prolongation beyond the period of one year and hence be of the same nature as the one already provided for in Article 29 .

(13)

The Council, taking account of the Commission's opinion, may recommend such extraordinary further prolongation and where appropriate lay down the conditions for cooperation between the Member States concerned, with a view to ensuring that it is an exceptional measure, in place only for as long as necessary and justified, and consistent with the measures also taken at the national level within the territory to address the same specific threat to public policy or internal security. The Council recommendation should be a prerequisite for any further prolongation beyond the period of six months. The Council recommendation should be immediately forwarded to the European Parliament .

(13a)

Measures taken under the specific procedure where exceptional circumstances put the overall functioning of the area without internal border control at risk should not be prolonged by virtue of, or combined with, measures taken under another procedure for the reintroduction or prolongation of internal border control as provided for in Regulation (EU) 2016/399.

(13b)

Where it considers that a Member State has failed to fulfil its obligations under the Treaties, the Commission should, as the guardian of the Treaties that oversees the application of Union law, take appropriate measures in accordance with Article 258 of the Treaty on the Functioning of the European Union, including by bringing the matter before the Court of Justice of the European Union.

(1 a)

(a)

whether the temporary reintroduction of border control at internal borders can be considered likely to sufficiently remedy the threat to public policy or internal security;

(b)

whether measures other than the temporary reintroduction of border control at internal borders, such as enhanced cross-border police cooperation or intensified police checks, are likely to sufficiently remedy the threat to public policy or internal security;

(c)

the proportionality of the temporary reintroduction of border control at internal borders in relation to the threat to public policy or internal security, in particular by taking into account:

(a)

the likely impact of any threats to its public policy or internal security, including following terrorist incidents or threats and including those posed by organised crime;

(b)

the likely impact of such a measure on free movement of persons within the area without internal border control.

(-i)

the title is replaced by the following:

(-ia)

in Article 27, a following new paragraph is inserted before paragraph 1:

(-ib)

in paragraph 1, the introductory part is replaced by the following:

(i)

In paragraph 1, a new letter (aa) is added as follows:

(i a)

In paragraph 1, the following point (ab) is inserted:

(e)

where appropriate, the measures to be taken by the other Member States as agreed prior to the temporary reintroduction of border control at internal borders concerned .

(e)

where appropriate, the measures to be taken by the other Member States as agreed prior to the temporary reintroduction of border control at the relevant internal borders."

(iii a)

the following paragraph 1a is inserted:

(iii b)

the following paragraph 1b is inserted:

The Commission is empowered to adopt delegated acts in accordance with Article 37 supplementing this Regulation by adopting the methodology for the risk assessment.’;

(iii c)

paragraph 2 is replaced by the following:

(iii d)

paragraph 3 is replaced by the following:

(i)

joint meetings between the Member State planning to reintroduce border control at internal borders, the other Member States, especially those directly affected by such measures, and the Commission, which shall be held with a view to organising, where appropriate, mutual cooperation between the Member States and to examining the proportionality of the measures to the events giving rise to the reintroduction of border control , including any possible alternative measures, and the threat to public policy or internal security;

(ii)

where appropriate, unannounced on-site visits by the Commission to the relevant internal borders and, where appropriate, with the support of experts from Member States and from the Agency, Europol or any other relevant Union body, office or agency, to assess the effectiveness of border controls at those internal borders and the compliance with this Regulation; the reports of such unannounced on-site visits shall be transmitted to the European Parliament .

(3a)

(3b)

(3c)

‘The criteria referred to in Article 30 shall be taken into account in each case where a decision on the temporary reintroduction or prolongation of border control at internal borders is considered pursuant to this Article.’

(3d)