[ParlTrack]

Proposal for a regulation
Citation 1

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (e) ~~and Article 79(2)(c)~~ thereof,

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 2

(2) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 (“Schengen Borders Code”)42 lays down rules governing the movement of persons to and from the area without controls at internal borders (the “Schengen Area”) as well as between the Member States that participate in the Schengen Areaprovides for the absence of border control of persons crossing the internal borders between the Member States of the Union. It lays down rules governing border control of persons crossing the external borders of the Member States of the Union. _________________ 42 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), OJ L 77, 23.3.2016, p. 1.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 3

(3) In recent years, the Schengen area has been subject to unprecedented challenges, which by their nature were not confined to the territory of any single Member State. Such challenges underscored the fact that the preservation of public order and security in the Schengen area is a shared responsibility requiring joined and coordinated action between Member States and at Union level. They also highlighted gaps in the existing rules governing the functioning of the Schengen area both at external and internal borders and the need to create a stronger andseveral Member States have, in various occasions, reintroduced border controls at the internal borders, often in an uncoordinated manner, undermining the essence of the Schengen area. Such circumstance underscored the need to provide a more robust framework allowing ~~for a m~~to enforce ~~effective response to challenges faced by~~the rules governing the functioning of the Schengen area.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 4

(4) Border control at external borders is in the interest not only of the Member State at whose external borders it is carried out but of ~~all Member States~~the Union as a whole and of all its all Member States, and in particular those which have abolished internal border control ~~and the Union as a whole~~. Member States are required to ensure high standards in management of their external borders, including through enhanced cooperation between border guards, police, customs and other relevant authorities. The Union provides active support through the provision of financing support by the Agencies, the European Border and Coast Guard in particular and management of the Schengen Evaluation Mechanism. The rules applicable to external borders need to be reinforced in order to better respond to new challenges that have recently emerged at the external bordersin accomplishing this goal.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 5

(5) The COVID-19 pandemic has reinforced the need for the Union to be better prepared to respond to crisis situations at the external borders related to situations of diseases with an epidemic potential that are a threat to public health. The COVID-19 pandemic has shown that threats to public health can require uniform rules concerning travel restrictions for travel into the European Union by third country nationals. The adoption of inconsistent and divergent measures at the external borders to address such threats negatively affects the functioning of the entire Schengen area, reduces predictability for third-country travellers and people-to- people contacts with third countries. To prepare the Schengen area for future challenges of a comparable scale ~~related to threats to public health~~to the COVID-19 pandemic, it is necessary to establish a new mechanism which should allow for a timely adoption and lifting of coordinated measures at Union level. The new procedure at the external border should be applied in a situation of an infectious disease with epidemic potential as identified by the European Centre for Disease Prevention and Control ~~or the Commission~~. This mechanism should complement the procedures proposed to be established in the Proposal for a Regulation of the European Parliament and of the Council on serious cross-border threats to health43 , notably in case of the recognition of a public health emergency, and the revised mandate of the European Centre for Disease Control.44 _________________ 43 COM(2020)727. 44 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 851/2004 establishing a European Centre for disease prevention and control, COM(2020)726.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 6

(6) The mechanism should provide for the adoption by the Council, upon a proposal by the Commission, and after having consulted the European Parliament, of a regulation setting out restrictions on travel, including restrictions on entry and any other necessary measures for travel into the European Union, and the conditions for lifting them. In view of the politically sensitive nature of such measures which concern the right to enter the territory of Member States, implementing powers should be conferred on the Council to adopt such a regulation, acting on a proposal from the Commission, and after having consulted the European Parliament.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 7

(7) Importantly, in line with the applicable obligations under Union and international law, Union citizens and third- country nationals who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens, as well as their respective family members should always be permitted to enter the Union. Residents in the Union should also always be permitted to return to the Union as well as refugees, persons with subsidiary or temporary protection and persons requesting international protection. The act should contain all necessary elements to ensure that restrictions on travel are effective, targeted, non-discriminatory and proportionate to the evolving epidemiological situation. It should specify, where relevant, any categories of travellers whose travel should be exempted from restrictions on entry. In addition, or alternatively, the act should specify any geographical areas or third countries from which travel may be subject to specific measures, based on an objective methodology and criteria applicable thereto t~~hat should include~~aking into account, in particular, the epidemiological situation. The act could specify the conditions under which travel may be permitted such as testing, quarantine, self-isolation or any other appropriate measures, such as the need to fill in a passenger locator form or other contact tracing tool and having regard, in particular, to any Union systems developed to facilitate travel under safe conditions, such as digital certification systems. ~~Where appropriate, the instrument could also set up a mechanism allowing to take additional measures in case the epidemiological situation dramatically worsens in one or more geographical areas.~~

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 8

(8) It is also necessary to reinforce the rules and safeguards in Union law in order to allow Member States to act swiftly to counter instances of instrumentalisation of migrants. Such instrumentalisation should be understood as referring to a situation where a third country instigates irregular migratory flows to the Union by actively encouraging or facilitating the arrival of third country nationals to the external borders of the Member States, where such actions indicate an intention to destabilise the Union as a whole or a Member State and where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 9

(9) Instrumentalisation of migrants can refer to situations where irregular travel of third country nationals has been actively encouraged or facilitated by a third country onto its own territory to reach the external border of the Member States but can equally refer to the active encouragement or facilitation of irregular travel of third country nationals already present in that third country. Instrumentalisation of migrants may also entail the imposition of coercive measures, intended to prevent the third country nationals from leaving the border areas of the instrumentalising third country, in a direction other than through a Member State.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 10

(10) The Union should mobilise all tools from its toolbox of diplomatic, financial and operational measures to support the Member States confronted with instrumentalisation. Diplomatic efforts by the Union or the Member State concerned, should be given priority as the means of addressing the phenomenon of instrumentalisation. This may be supplemented, where appropriate, by the imposition of restrictive measures by the Union.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 11

(11) At the same time, in addition to these measures, it is equally necessary to further reinforce the current rules in relation to external border controls and border surveillance. To further assist the Member State facing an instrumentalisation of migrants, Regulation (EU) XXX/XXX complements the rules on border control by providing for specific measures in the area of asylum and return, while respecting the fundamental rights the individuals concerned and in particular by ensuring the respect of the right to asylum and providing the necessary assistance by the UN agencies and other relevant organisations.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 12

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

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 13

(13) The European Border and Coast Guard Agency assists Member States with implementing the operational aspects of external border management, including information exchange, the provision of equipment, capacity building and training to national border guards, targeted information and risk analysis, ~~as well as~~ the deployment of the Standing Corps. The Agency’s new mandate offers considerable opportunities to support border control activities, including screening and return operations and a launch of rapid border intervention and/or return intervention at the request and on as well as assistance in search and rescue operations for persons in distress at sea. The Agency should implement all the tools offered by the new mandate to ensure that these activities are conducted in full compliance withe t~~erritory of the host Member State concerned~~he Union acquis on fundamental rights and the relevant international obligations.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 14

(14) By virtue of Article 41(1) of Regulation (EU) 2019/1896, the Executive Director of the European Border and Coast Guard Agency is required to recommend to a Member State that it request the Agency to initiate, carry out or adjust the Agency’s support, in order to address identified threats and challenges at the external borders, where the conditions laid down in that provision are met. In particular, the need for Agency support may become apparent in situations where the European Border and Coast Guard Agency has carried out a dedicated vulnerability assessment in connection with the instrumentalisation of migrants. On the basis of the results of such aon the basis of the results of the vulnerability assessment or where a critical impact level is attributed to one or more external border sections and taking into account the relevant elements in the Member State's contingency plans, the Agency's risk analysis and the analysis layer of the European situational picture, the Executive Director should recommend to the Member State concerned to request that the Agency initiate, carry out or adjust the Agency’s support ~~in accordance with Article 41(1) of Regulation (EU) 2019/1896~~. This competence of the Executive Director is without prejudice to the general support that the Agency may be providing to the Member States.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 15

(15) Moreover, in the event of instrumentalisation of migrants, the Member State concerned should reinforce border control, including, as appropriate, through additional measures preventing illegal crossings and the deployment of additional resources and technical means to prevent unauthorised crossing of the border. Such technical means could include modern technologies including drones and motion sensors, as well as mobile units. The use of such technical means, in particular, any technologies capable of collecting personal data, needs to be based on and exercised in accordance with clearly defined provisions of national law.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 16

(16) The Commission should be empowered to specify, in delegated acts adopted under this Regulation, appropriate standards for border surveillance, concerning in particular the ~~new~~ technologies that Member States may use, while taking into account the type of borders (land, sea or air), the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 and other relevant factors, ~~as a specific response to situations of instrumentalisation of migrants~~in full compliance with the Union acquis on data protection and the regulatory framework related to the use of artificial intelligence.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 17

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

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 18

(18) While the prohibition of internal border controls also extends to checks having equivalent effects, checks by ~~compet~~law enforcement authorities should not be considered equivalent to the exercise of border checks where they do not have border control as an objective, where they are based on ~~general~~specific and substantiated police information and experience of the ~~competent~~se authorities regarding possible threats to public security ~~or public policy, including where they aim to combat irregular stay or residence and cross-border crimes linked to irregular migration~~, where they are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders, and where they are conducted at transport hubs, such as ports, train or bus stations and airports or directly on board of passenger transport services, and where they are based on risk analysis.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 19

(19) ~~While irregular migratory flow~~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~~, they may require additional measures to ensure the functioning of the Schengen area~~.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 20

(20) The combatting of illegal residence or stay and of cross-border crime linked to irregular migration such as human trafficking, migrant smuggling and document fraud and other forms of cross-border crime could in particular encompass measures allowing the verification of the identity, nationality and residence status of persons provided that such verifications are non-systematic and carried out on the basis of risk analysis.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 21

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

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 23

(23) The prohibition of border controls at internal borders should not limit the carrying out of checks provided for in other instruments of Union law. The rules provided for in this Regulation, should not therefore, affect the applicable rules regarding the carrying out of checks on passenger data against relevant databases in advance of arrival.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 25

(25) Measures need to be taken to address unauthorised movements of illegally staying third country nationals in an area without internal border controls. In order to strengthen the functioning of the Schengen area, Member States should be able to take additional measures to counter irregular movements between Member States, and combat illegal stays. Where national law enforcement authorities of a Member State apprehend illegally staying third country nationals at the internal borders as part of cross- border police operational cooperation it should be possible for those authorities to refuse such persons the right to enter or remain in their territory and to transfer them to the Member State from which they entered. The Member State from where the person came directly should in turn be required to receive the apprehended third country nationals.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 26

(26) The procedure by which a Member State may transfer apprehended illegally staying third country nationals to a Member State from where the person came directly should take place swiftly but be subject to safeguards and carried out in full respect of fundamental rights and the principle of non-discrimination enshrined in Article 21 of the Charter, to prevent racial profiling. It should be possible for the authorities to carry out a verification of relevant information immediately available to the authorities concerning the movements of the persons concerned. Such information may include objective elements that would allow the authorities to conclude that the person had recently travelled from another Member States, such as the possession of documents, including receipts or invoices, evidencing recent travel from another Member State. Third country nationals subject to the transfer procedure should be provided with a reasoned decision in writing. While the decision should be immediately enforceable, the third country national should be afforded an effective remedy to appeal against or seek review of the transfer decision. This remedy should not have suspensive effect.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 27

(27) The transfer procedure provided for under this Regulation should not affect the existing possibility for Member States to return irregular third country nationals in accordance with bilateral agreements or arrangements referred to in Article 6(3) of Directive 2008/115/EC (the “Return Directive”), where such persons are detected outside of the vicinity of internal borders. In order to facilitate the application of such agreements, and to complement the objective of protecting the area without internal borders, the Member States should be afforded the possibility to conclude new agreements or arrangements and update existing ones. The Commission should be notified of any such modifications or updates of new agreements or arrangements. Where a Member State has taken back a third country national under the procedure provided for in this Regulation or on the basis of a bilateral agreement or arrangement, the Member State concerned should be required to issue a return decision in accordance with the Return Directive. In order to ensure consistency between the new procedures provided for in this Regulation and existing rules on the return of third country nationals, a targeted modification of Article 6(3) of the Return Directive is therefore necessary.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 28

(28) In exceptional cases, addressing identified threats to the Schengen area may require the adoption, by the Member States, of measures at the internal borders. Member States remain competent to determine the need for the temporary reintroduction or prolongation of border controls. Under the existing rules, the reintroduction of controls at internal borders is provided for in circumstances where a serious threat to internal security or public policy manifests itself in a single Member State for a limited period of time. In particular, terrorism and organised crime, large scale public health emergencies or large scale or high profile international events such as sporting, trade or political events can amount to a serious threat to public policy or internal security. However, considering the impact that the reintroduction of border controls at internal borders might have on freedom of movement and other fundamental rights, it shall represent an exceptional measure of last resort to be duly assessed in advance. Any decision to reintroduce such control should be taken in accordance with commonly agreed criteria and should be duly notified to the Commission or be recommended by a Union institution.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 29

(29) Furthermore, a serious threat to public policy or internal security can also result from large scale unauthorised movements of irregular migrants between the Member States where this creates a situation putting a strain on the overall resources and capacities of the responsible national services, where the other means provided for under this Regulation are not sufficient to address these inflows and movements. In this context, Member States should be able to rely on objective and quantified reports on unauthorised movements whenever available, in particular, when produced on a regular basis by the competent Union agencies in line with their respective mandates. It should be possible for a Member State to use the information provided by the agencies to demonstrate the exceptional character of the identified threat caused by unauthorised movement in the risk assessment, in order to justify the reintroduction of internal border controls on this ground.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 30

(30) While action at Union level is provided for in circumstances where the nature of a threat derives from persistent serious deficiencies at the external borders, there is no Union-wide mechanism t~~hat would apply to situ~~o ensure coordinations where~~, within the Schengen area,~~ a serious threat to internal security or public policy area is affecting ~~a majority of~~several Member States at the same time, putting at risk the well- functioning of the Schengen area. The gap should be filled by putting in place a new Schengen area safeguard mechanism permitting coordinated solutions to protect the interests of persons entitled to benefit from the area without controls at internal borders, by maximising the effectiveness of the measures taken while minimising their negative side-effects.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 31

(31) The new Schengen area safeguard mechanism should allow the Council to adopt, upon a proposal by the Commission, and after having consulted the European Parliament, a decision authorising the reintroduction or prolongation of internal border controls, where this is justified by a particular threat, identified on the basis of notifications received from individual Member States~~, or other available information, in particular a risk assessment, in case of prolongation of internal border controls beyond six months~~. Given the politically sensitive nature of such a decision which regulates the possibility for Member States to reintroduce or prolong internal border control in particular circumstances, implementing powers to adopt a decision should be conferred on the Council, acting on a proposal from the Commission, and after having consulted the European Parliament.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 32

(32) In determining whether a reintroduction or prolongation of internal border controls by the Member States is justified, the Co~~uncil should take into account~~mmission should first assess whether ~~any o~~ther measure~~s that could ensure a high level of security within the territory, such as reinforced checks in the internal border areas by the competent authorities, are available~~ is appropriate, necessary and proportionate to address the identified threat. In the event that a prolongation of the controls is not considered justified, the Commission should, instead, recommend the use of other measures deemed more appropriate to address the identified threat, as well as the immediate lifting of those controls.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 34

(34) In order to ensure compliance with the principle of proportionality, the decision of the Council should be adopted for a limited period of time of up to six months that may be prolonged subject to regular review upon a proposal from the Commission, as long as the threat is found to persist, up to a maximum period of two years in exceptional cases. The initial decision should include an assessment of the expected impact of the measures adopted, including its adverse side-effects, with a view to determining if controls at internal borders are justified or whether less restrictive measures cshould be applied in their place in an effective manner. Subsequent decisions should take account of the evolution of the identified threat. The Member States should immediately notify the Commission, the European Parliament and the Member States of the reintroduction of internal border controls in accordance with the decision of the Council.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 35

(35) Reintroduction of internal border controls should also remain possible where serious deficiencies in the management of the external borders persist, putting at risk the overall functioning of the area without internal border control. Periods where the border controls were introduced by Member States because the urgency of the situation required it or where the Council takes a decision to recommend the reintroduction because a threat affects a significant number of Member States, should not be included in the two years’ period applicable to reintroductions based on serious deficiencies at the external borders.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 36

(36) The reintroduction of border controls at internal borders, whether on the basis of unilateral decisions of the Member States or at a Union level, has serious implications for the functioning of the Schengen area as well as for the rights of individuals. In order to ensure that any decision to reintroduce border controls is only taken where necessary, as a measure of last resort, the decision on temporary reintroduction or prolongation of border controls should be based on common criteria and on a thorough assessment, putting an emphasis on necessity and proportionality. The proportionality principle requires that the reintroduction of internal border controls be subject to safeguards that increase over time.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 36 a (new)

(36 a) Any 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.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 37

(37) In ~~the first instanc~~order to ensure that internal border controls are truly a last resort measure, Member States should assess the appropriateness of internal border controls having regard to the nature of the serious threat identified and the ability of such measure to adequately remedy the identified threat. Member State should also assess the proportionality of internal border controls and evaluate whether alterative measures could be more appropriate to remedy the threat. In this context, the Member States should pay particular attention to ~~and assess~~ the likely impact of internal border controls on the movement of persons within the area without internal border controls, on the right to seek asylum and the principle of non- refoulement, on the principle of non- discrimination and the functioning of the cross-border regions. This assessment should be part of the notification that Member States are required to transmit to the Commission, the European Parliament and the other member States. In case of prolongation of internal border controls for foreseeable events beyond an initial period of ~~six~~three months, the Member State should also assess the appropriateness of alternative measures to pursue the same objectives as internal border controls, such as proportionate checks as carried out in the exercise of police or other public powers or through forms of police cooperation as provided for under Union law, and the possibility to use the transfer procedmake a further risk assessment, reassessing the appropriateness, necessity and proportionality of this measure, and explain the scale and evolution of the identified serious threat, including how long the identified serious threat is expected to persist and which sections of the internal borders may be affected, as well as their coordination measures with the other Member States that are impacted or likely to be impacted by such measures.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 38

(38) In order to limit harmful consequences resulting from the reintroduction of internal border controls, any decision to reintroduce internal border controls should be accompanied by mitigating measures if needed. Such measures should include measures to assure a smooth operation of transit of goods and transport personnel and seafarers by the establishment of ‘green lanes’. In addition, and to take account of the need to ensure the movement of persons whose activities may be essential for preserving the supply chain or the provision of essential services, Member States should also apply the existing guidelines on cross-border workers45 . Against this background, the rules for the reintroduction of border controls at internal borders should take account of the guidelines and recommendations adopted throughout the COVID-19 pandemic as a solid safety net for the Single Market, for the purpose of assuring that they are applied by the Member States, where appropriate, as mitigating measures during reintroduced internal border controls. Me~~asur~~mber States should in particular be identified with a view to ensuring the uninterrupted functioning of the Single Market and safeguarding the interests of cross-border regions and of ‘twin cities’ including for instance authorisations or derogations for the inhabitants of cross- border regionsalso take into account the impact of the measures on families and the right to family life as protected under EU law. _________________ 45 2020/C 102 I/03.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 39

(39) The notification and the preliminary assessment to be provided by the Member States should be decisive when assessing compliance with the criteria and conditions for a temporary reintroduction of internal border controls. ~~In order to ensure a comparable set of information, t~~The Commission should adopt a template for the notification of reintroduction of border controls at internal borders in an implementing act. Member States should be entitled to classify all or parts of the information provided in the notification, without prejudice to the functioning of appropriate and secure police cooperation channels and without prejudice to the information being made available by the Commission to the European Parliament.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 40

(40) In order to ensure that internal border controls are truly a last resort measure applied only for as long as necessary and in order to allow for assessing the necessity and proportionality of internal border controls to address foreseeable threats, Member States should prepare a risk assessment to be submitted to the Commission when internal border controls are prolonged beyond an initial six months in response to foreseeable threats. The Member States must in particular, explain, the scale and evolution of the identified serious threat, including how long the identified serious threat is expected to persist and which sections of the internal borders may be affected, as well as their coordination measures with the other Member States that are impacted or likely to be impacted by such measures.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 42

(42) In order to ensure a sufficient ~~degree of transparency of the action~~level of supervision, transparency and accountability with regards to the actions taken by Member States affecting travel without internal border controls, the Member States should ~~also inform~~provide detailed information to the European Parliament and the Council ~~about the main elements~~ concerning the planned reintroduction of border controls. In justified cases, Member States may also classify such information. Every year, pursuant to Article 33 of the Schengen Borders Code, the Commission should present to the European Parliament and to the Council a report on the functioning of the area without internal border control (‘State of Schengen report’) which should pay particular attention to the situation as regards the unauthorised movements of third country nationals, building on the available information from the relevant Agencies and data analysis from relevant information systems. It should alsolist all the decisions to reintroduce border control at internal borders and assess the necessity and proportionality of the reintroductions of border controls in the period covered by that Report. The ~~State of Schengen r~~Report sh~~all~~ould also cover the reporting obligations resulting from Article 20 of the Schengen Evaluation Mechanism46 . _________________ 46 Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, OJ L 295, 6.11.2013, p. 27include all the decisions and actions taken by the Commission with regard to the reintroduction or prolongation of border controls. The State of Schengen report shall also cover the reporting obligations resulting from Article 25 of Regulation (EU) 2022/922.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 43

(43) The mechanism for the temporary reintroduction of border controls at internal borders in urgent situations or to address foreseeable threats should provide for a possibility, for the Commission, to organise consultations between Member States, including at the request of any Member State. RThe European Parliament and relevant Union Agencies should be involved in this process in order to share their expertise, where appropriate. Such consultations should look into the modalities of carrying out internal border controls and their time-line, possible mitigating measures, the appropriateness, necessity and proportionality of internal border controls and their impact as well as the possibilities of applying alternative measures instead. Where the Commission or a Member State has issued an opinion expressing concerns regarding the reintroduction of border controls, such consultations should be mandatory.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 44

(44) The Commission and Member States should retain the possibility to express any concern as regards the necessity and proportionality of a decision of a Member State to reintroduce internal border controls for reason of urgency or to address a foreseeable threat. In case controls at internal borders are reintroduced and prolonged for foreseeable threats for combined periods exceeding ~~eighteen~~six months, it should be a requirement for the Commission to issue an opinion assessing the necessity and proportionality of such internal border controls. Where a Member State considers that there are exceptional situations justifying the continued need for internal border controls for a period exceeding two years, the Commission should issue a follow-up opinion. Such an opinion is without prejudice to the enforcement measures, including infringement actions, which the Commission ~~may~~is required to take at any time against any Member State for failure to comply with its obligations under Union law. ~~Where an opinion is issued, the Commission should launch consultations with the Member States concerned.~~

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 45

(45) In order to enable the post factum analysis of the decision on the temporary reintroduction of border controls at the internal borders, Member States should remain obliged to submit a report on the reintroduction of border control at internal borders to the European Parliament, the Council and the Commission once they lift the controls. Where the controls are ~~kept in place for prolonged periods of time~~prolonged, such a report should also be submitted after ~~twelve months, and every year thereafter if exceptionally controls are maintained and for as long as the controls are maintained~~any prolongation. The report should outline, in particular, the initial and follow-up assessment of the necessity and proportionality of internal border controls and the respect of the criteria for reintroduction of border controls at internal borders. The Commission should adopt in an implementing act a template and make it available online.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 46

(46) When implementing this Regulation, Member States shall not categorise people based on racial, ethnic, national or religious characteristics, and not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. In line with the European Union’s commitments under the EU anti- racism action plan, Member States should adopt National Action Plans against racism which include concrete provisions aimed at countering discrimination by law enforcement authorities, including by providing for effective remedies for victims of racial profiling.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 47

(47) The ~~competent~~ authorities ~~shall use their powers to carry out checks within the territory and apply relevant procedures in~~referred to in this Regulation shall fully respect of the rules on data protection under Union law in all their activities. Regulation (EU) 2016/679 of the European Parliament and of the Council or Directive (EU) 2016/680 of the European Parliament and of the Council apply to the processing of personal data by competent national authorities for the purposes of this Regulation, in their respective field of application.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Recital 56

(56) Regulation (EU) No 2016/399 ~~and Directive 2008/115/EC~~ should therefore be amended accordingly,

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point a

Regulation (EU) No 2016/399
Article 2 – point 12

12. ‘border surveillance’ means the surveillance of borders between crossing points and of border crossing points outside fixed opening hours, in~~cluding preventative measures to detect and~~ order to prevent unauthorised border crossings or the circumvention of border checks.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point b

Regulation (EU) No 2016/399
Article 2 – point 27

27. ‘instrumentalisation of migrants’ refers to a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders, onto or from within its territory and then onwards to those external borders, where such actions are indicative of an intention of a third country to destabilise the Union or a Member State, where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security;deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 2

Regulation (EU) No 2016/399
Article 5 – paragraph 4

(2) In Article 5, a new paragraph 4 is added: ‘4. In a situation of instrumentalisation of migrants, Member States may limit the number of border crossing points as notified pursuant to paragraph 1 or their opening hours where the circumstances so require. Any limitations adopted pursuant to the first subparagraph shall be implemented in a manner that is proportionate and that takes full account of the rights of: (a) the persons enjoying the right of free movement under Union law; (b) third-country nationals who are long- term residents under Council Directive 2003/109/EC56 , persons deriving their right to reside from other instruments of Union or national law or who hold national long-term visas, as well as their respective family members; (c) third-country nationals seeking international protection.’ _________________ 56 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 1

1. The main purpose of border surveillance shall be to ~~detect and~~ prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border i~~llegally. A~~rregularly. Without prejudice to Articles 3 and 4, a person who has crossed a border i~~llegal~~rregularly and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC, provided that this person does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other grounds under the applicable national legal framework, and that his/her return would not lead to risks of violations of the principle of non- refoulement or other fundamental rights obligations under the EU or international law.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 2

2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from unauthorised border crossings between border crossing points and from circumventing the checks at border crossing points, in full compliance with the obligations arising from Article 4.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 3

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods ~~and other methods or techniques~~, so that unauthorised border crossings are ~~effectively detected or preven~~always at risk of being detected.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 4

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to prevent unauthorised border crossings or apprehend individuals crossing the border i~~llegal~~rregularly. Surveillance may also be carried out by technical means, including electronic means, equipment and surveillance systems, and shall be conducted in accordance with the standard and obligations provided for in the Regulation (EU) .../... of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 5

5. In a situation of instrumentalisation of migrants, the Member State concerned shall intensify border surveillance as necessary in order to address the increased threat. In particular, the Member State shall enhance, as appropriate, the resources and technical means to prevent an unauthorised crossing of the border. Those technical means may include modern technologies including drones and motion sensors, as well as mobile units to prevent unauthorised border crossings into the Union.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 6

6. Without prejudice to the support that the European Border and Coast Guard Agency may provide to the Member States, in the event of a situation of instrumentalisation of migrants, the Agency may carry out a vulnerability assessment as provided for in Articles 10(1), point (c), and Article 32 of Regulation (EU) 2019/1896 of the European Parliament and Council57 , with a view to providing the necessary support to the Member State concerned. On the basis of the results of that assessment or any other relevant vulnerability assessment or the attribution of a critical impact level to the border section concerned within the meaning of Article 35(1)(d) of Regulation (EU) 2019/1896, the Executive Director of the European Border and Coast Guard Agency shall make recommendations, in accordance with Article 41(1) of that Regulation to any Member State concerned. _________________ 57 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, OJ L 295, 14.11.2019.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 3

Regulation (EU) No 2016/399
Article 13 – paragraph 7

7. TFor the purpose of paragraph 4, the Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning additional measures governing surveillance, including the development of standards for border surveillance, in particular the use of surveillance and monitoring technologies at the external borders, taking into account the type of borders, the impact levels attributed to each external border section in accordance with Article 34 of the Regulation (EU) 2019/1896 and other relevant factors.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – introductory part

Regulation (EU) No 2016/399
Title II – Chapter VI (new) – Title

(4) After Chapter V ~~is renamed as follows: “Specific measures relating to the external borders~~the following Chapter VI is inserted: “Specific measures in the event of infectious diseases with epidemic potential”

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – paragraph 1 – introductory part

Regulation (EU) No 2016/399
Chapter VI (new) – Article 21a

In Chapter VI, the following Article 21a is inserted:

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – paragraph 1

Regulation (EU) No 2016/399
Article 21a – paragraph 1

1. This Article shall apply to situations where the European Centre for Disease Prevention and Control ~~or the Commission~~ identifyies the existence in one or more third countries of an infectious disease with epidemic potential as defined by the relevant instruments of the World Health Organization.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – paragraph 1

Regulation (EU) No 2016/399
Article 21a – paragraph 2 – subparagraph 1

2. The Council, on the basis of a proposal by the Commission, and after having consulted the European Parliament, may adopt an implementing regulation, providing for temporary restrictions on travel to the Member States.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – paragraph 1

Regulation (EU) 2016/399
Article 21a – paragraph 3 – point ba new

b a) refugees, persons with subsidiary or temporary protection and persons requesting international protection, in particular as regards non-refoulement.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 4 – paragraph 1

Regulation (EU) No 2016/399
Article 21a – paragraph 4 – point b

b) identify any geographical areas or third countries from which non-essential travel may be subject to restrictions or exemptions from restrictions, having regard to the particular situation of the areas or countries concerned on the basis of objective methodology and criteria, ~~including,~~ in particular, the epidemiological situation;

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – point a

a) the exercise of police ~~or other public~~ powers by the competent authorities of the Member States in their territory, including in their internal border areas, as conferred on them under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks. TWithin the meaning of the first subparagraph, the exercise by competent authorities of their powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – point a – point ii

ii) are based on ~~general~~specific and substantiated police information and experience of the competent authorities regarding possible threats to public security ~~or public policy~~ and aim, in particular, to:

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – point a – point ii – indent 2

~~— combat irregular residence or stay, linked to irregular migration; or~~deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – point a – point iv

iv) are carried out, where appropriate, on the basis of monitoring and surveillance technologies generally used in the territory, for the purposes of addressing threats to public security ~~or public policy~~ as set out under ii);

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – paragraph 1 – point aa new

a a) the substantiated information referred to in paragraph a), point ii), cannot include information collected through the automated processing of data available in different data sources or in different data formats in order to forecast or predict trends related to migration, movement and border crossings;

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 5

Regulation (EU) No 2016/399
Article 23 – point e

e) checks for security purposes of passenger data against relevant databases on persons traveling in the area without controls at internal borders which can be carried out by the competent authorities under the applicable law.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 6

Regulation (EU) No 2016/399
Article 23a

(6) The following Article 23a is inserted: ‘Article 23a Procedure for transferring persons apprehended at the internal borders 1. This Article applies to the apprehension of a third-country national in the vicinity of internal borders, in circumstances where all of the following conditions are fulfilled: a) the third country national concerned does not or no longer fulfils the entry conditions laid down in Article 6(1); b) the third country national is not covered by the derogation laid down in Article 6(5) point (a); c) the third country national is apprehended as part of cross-border police operational cooperation, in particular, during joint police patrols; d) there are clear indications that the third country national has arrived directly from another Member State, on the basis of information immediately available to the apprehending authorities, including statements from the person concerned, identity, travel or other documents found on that person or the results of searches carried out in relevant national and Union databases. 2. The competent authorities of the Member State may, based on a finding that the third country national concerned has no right to stay on its territory, decide to immediately transfer the person to the Member State from which the person entered or sought to enter, in accordance with the procedure set out in Annex XII. 3. Where a Member State applies the procedure referred to in paragraph 2, the receiving Member State shall be required to take all measures necessary to receive the third country national concerned in accordance with the procedures set out in Annex XII. 4. From [one year following the entry into force of the Regulation] and annually thereafter, Member States shall submit to the Commission the data recorded in accordance with point 3 of Annex XII, regarding the application of paragraphs 1, 2 and 3.’deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 8

Regulation (EU) No 2016/399
Article 25 – paragraph 1 – point a

(a) a~~ctivities~~ direct and immediate threlat~~ing to~~ of acts of terrorism or of serious organised crime;

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 8

Regulation (EU) No 2016/399
Article 25 – paragraph 1 – point c

(c) a situation characterised by large scale unauthorised movements of third- country nationals between the Member States, putting at risk the overall functioning of the area without internal border control;deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 8

Regulation (EU) No 2016/399
Article 25 – paragraph 3

3. Where the same threat continues to persist, border controls at internal borders may be prolonged in accordance with Articles 25a, 28 or 29. The same threat shall be considered to exist where the justification advanced by the Member State for prolonging border controls is based on the determination of the continuation of the same threat that had justified the initial reintroduction of the border controls.deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – Title

Procedure for ~~cases requiring action due to unforeseeable or foreseeable event~~temporary reintroduction or prolongation of border control at internal borders

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – paragraph 2

2. The Member State shall, at the same time as reintroducing border control under paragraph 1, notify the Commission, the European Parliament and the other Member States of the reintroduction of border controls, in accordance with Article 27(1).

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – paragraph 3

3. For the purposes of paragraph 1, border control at internal borders may be immediately reintroduced for a limited period of up to one month. If the serious threat to public policy or internal security persists beyond that period, the Member State may prolong the border control at internal borders for further periods, leading to a maximum duration not exceeding three months. In doing so, the Member State concerned shall carry out an assessment of the necessity and the proportionality of the measure as referred to in Article 26, and make a new notification in accordance with Article 27(1).

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – paragraph 4

4. Where a serious threat to public policy or internal security is foreseeable in a Member State, the Member State ~~shall notify the Commission~~may, on exceptional basis and as a last resort, reintroduce border controls at internal borders following the assessment provided for in Article 26 and a notification to the Commission, the European Parliament and the other Member States ~~and the Commission~~ in accordance with Article 27(1),. The notification shall be transmitted at the latest four weeks before the planned reintroduction of border controls, or within a shorter period where the circumstances giving rise to the need to reintroduce border controls at internal borders become known less than four weeks before the planned reintroduction.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – paragraph 5

5. For the purposes of paragraph 4, and without prejudice to Article 27a(4), border control at internal borders may be reintroduced for a period of up to ~~six~~three months. Where the serious threat to public policy or internal security persists beyond that period, the Member State may prolong the border control at internal borders for renewable periods of up to ~~six~~three months. Any prolongation shall be notified to the Commission, the European Parliament and the other Member States in accordance with Article 27 and within the time limits referred to in paragraph 4. Subject to Article 27a(5), the maximum duration of border control at internal borders shall not exceed ~~two~~one years.

2022/12/12
Committee: LIBE

Erik MARQUARDT

Proposal for a regulation
Article 1 – paragraph 1 – point 9

Regulation (EU) No 2016/399
Article 25a – paragraph 6

~~6. The period referred to in paragraph 5 shall not include periods referred to in paragraph 3.~~deleted

2022/12/12
Committee: LIBE

Erik MARQUARDT