[ParlTrack]

Proposal for a regulation
Recital 3

(3) In recent years, the Schengen area has been subject to unprecedented challenges, ~~which~~such as the migratory crisis, the COVID-19 pandemic, the increased number of irregular border crossing, the instrumentalisation of migrants and the humanitarian crisis caused by Russia’s military invasion of Ukraine. Those challenges, 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 and more robust framework allowing for a more effective response to challenges faced by the Schengen area.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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, or a non state actor, instigates irregular migratory flows to the Union by actively encouraging or facilitating the arrival of third country nationals or stateless persons 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 or non state actor onto its own territory to reach the external borders of the ~~Member States~~Union 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 of 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 physical infrastructure as well as modern technologies including drones ~~and~~, motion sensors, a~~s well as~~nd 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 border areas, 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 to carry out checks in the exercise of public powers provided for under national law.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

Proposal for a regulation
Recital 18

(18) While the prohibition of internal border controls also extends to checks having equivalent effects, checks by competent authorities sh~~ould~~all 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 information and experience of the competent authorities regarding possible threats to public ~~security or public polic~~policy or internal security, including where they aim to combat i~~rregular stay or residence~~llegal migration and cross- border crimes linked to i~~rregular~~llegal 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

Sara SKYTTEDAL, Jeroen LENAERS

Proposal for a regulation
Recital 19

(19) While irregular migratory flows 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, specially when resulting in large scale unauthorised movements of irregular migrants.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

Proposal for a regulation
Recital 20

(20) The combatting of illegal residence or stay and of cross-border crime linked to i~~rregular~~llegal 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 i~~rregular~~llegally staying 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 that would apply to situations where, within the Schengen area, a serious threat to internal security or public policy area is affecting ~~a majority of~~more than one Member States, 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

Sara SKYTTEDAL, Jeroen LENAERS

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. 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 could 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 and the Member States of the reintroduction of internal border controls in accordance with the decision of the Council, and the European Parliament should be immediately informed.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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. Measures should in particular be identified with a view to ensuring the uninterrupted functioning of the Single Market and safeguarding the interests of cross-border regions and of ‘twin cities’ including for instance authorisations or derogations for the inhabitants of cross-border regions. _________________ 45 2020/C 102 I/03.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

Proposal for a regulation
Recital 42

(42) In order to ensure a sufficient degree of transparency of the actions affecting travel without internal border controls, the Member States should also inform 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 competent national authorities of the Member States, the relevant Agencies and data analysis from relevant information systems. It should also assess the necessity and proportionality of the reintroductions of border controls in the period covered by that Report. The State of Schengen report shall 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. 27.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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 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 t~~wo year~~hirty months, 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 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

Sara SKYTTEDAL, Jeroen LENAERS

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

Regulation (E) 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, including preventative measures to detect and prevent unauthorised border crossings or the circumvention of border checks, as well as actions to provide situational awareness.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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

Regulation EU No 216/399
Article 2 – point 27

27. ‘instrumentalisation of migrants’ refers to a situation where a third country or non state actor instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals or stateless persons 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;

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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

4. In a situation of instrumentalisation of migrants, or other situations that cause similar extreme conditions at the external borders, 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.

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS

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

Regulation (EU) No 2016/399
Article 5 – paragraph 4 – subparagraph 2

Any ~~limit~~actions adopted pursuant to the first subparagraph shall be implemented in a manner that is proportionate and that takes full account of the rights of:

2022/12/12
Committee: LIBE

Sara SKYTTEDAL, Jeroen LENAERS