LegalizeRegulation (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) (codification)
TITLE I
GENERAL PROVISIONS
Article 1
Subject matter and principles
This Regulation provides 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.
Article 2
Definitions
For the purposes of this Regulation the following definitions apply:
‘internal borders’ means:
(a) the common land borders, including river and lake borders, of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular internal ferry connections;
‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders;
‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country;
‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States, and consisting of the transport of passengers and vehicles according to a published timetable;
‘persons enjoying the right of free movement under Union law’ means:
(a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council (1) applies; (b) third-country nationals and their family members, whatever their nationality, 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;
‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article;
‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council (2);
‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders;
‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement;
‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;
‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it;
‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside fixed opening hours, including preventative measures, to prevent or detect unauthorised border crossings or the circumvention of border checks, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally;
‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line);
‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks;
‘carrier’ means any natural or legal person whose profession it is to provide transport of persons;
‘residence permit’ means:
(a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 (3) and residence cards issued in accordance with Directive 2004/38/EC; (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory that have been the subject of a notification and subsequent publication in accordance with Article 39, with the exception of: (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum; and (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 (4);
‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage;
‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes;
‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country;
‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States, as defined under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States;
‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States;
‘entry/exit System’ (EES) means the system established by Regulation (EU) 2017/2226 of the European Parliament and of the Council (5);
‘self-service system’ means an automated system which performs all or some of the border checks that are applicable to a person and which may be used for pre-enrolling data in the EES;
‘e-gate’ means an infrastructure operated by electronic means where an external border or an internal border where controls have not yet been lifted is actually crossed;
‘automated border control system’ means a system which allows for an automated border crossing, and which is composed of a self-service system and an e-gate;
‘confirmation of the authenticity and integrity of the chip data’ means the process by which it is verified, through the use of certificates, that the data on the electronic storage medium (chip) originate from the issuing authority and that they have not been changed;
‘large-scale public health emergency’ means a public health emergency, that is recognised at Union level by the Commission, taking into account information from competent national authorities, where a serious cross-border threat to health could have large-scale repercussions on the exercise of the right to free movement;
‘essential travel’ means travel by a person who is exempted from restrictions on entry pursuant to Article 21a(4) or (5), in connection with an essential function or need, taking into account any applicable international obligations of the Union and of the Member States;
‘non-essential travel’ means travel other than essential travel;
‘transport hubs’ means airports, sea or river ports, train or bus stations and freight terminals.
Article 3
Scope
This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the right of free movement under Union law;
(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.
Article 4
Fundamental Rights
When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.
TITLE II
EXTERNAL BORDERS
CHAPTER I
Crossing of external borders and conditions for entry
Article 5
Crossing of external borders
Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39.
By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed:
(a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 39;
(b) for individuals or groups of persons in the event of an unforeseen emergency situation;
(c) in accordance with the specific rules set out in Articles 19 and 20 in conjunction with Annexes VI and VII.
Member States may, where a large number of migrants attempt to cross their external borders in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order.
Any measures pursuant to the first subparagraph of this paragraph and paragraph 3, second subparagraph of this Article, shall be implemented in a manner that is proportionate and that takes full account of the rights of:
(a) persons enjoying the right of free movement under Union law;
(b) third-country nationals who are long-term residents under Council Directive 2003/109/EC (7), persons deriving their right to reside from other instruments of Union or national law or who hold national long-stay visas, as well as their respective family members; and
(c) third-country nationals seeking international protection.
Article 6
Entry conditions for third-country nationals
For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
(a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years;
(b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 (8), except where they hold a valid residence permit or a valid long-stay visa;
(c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully;
(d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry;
(e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds;
(f) they provide biometric data, if required for: (i) the creation of the individual file in the EES in accordance with Articles 16 and 17 of Regulation (EU) 2017/2226; (ii) the carrying out of border checks in accordance with Article 8(3)(a)(i) and (g)(i) of this Regulation, Article 23(2) and (4) of Regulation (EU) 2017/2226 and, where applicable, Article 18 of Regulation (EC) No 767/2008 of the European Parliament and of the Council (9).
Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 39.
The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence.
By way of derogation from paragraph 1:
(a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit;
(b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/2009 of the European Parliament and of the Council (10). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002 (11), shall be used;
(c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly.
Article 6a
Third-country nationals for whom data are to be entered in the EES
On entry and exit, data on the following categories of persons shall be entered in the EES in accordance with Articles 16, 17, 19 and 20 of Regulation (EU) 2017/2226:
(a) third-country nationals admitted for a short stay pursuant to Article 6(1) of this Regulation;
(b) third-country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who do not hold a residence card pursuant to that Directive;
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