Regulation (EU) 2024/1717 of the European Parliament and of the Council of 13 June 2024 amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1) In accordance with Article 3(2) of the Treaty on European Union (TEU), the Union comprises an area of freedom, security and justice that is free of internal border control, in which the free movement of persons is ensured in conjunction with appropriate measures regarding external border control, asylum, immigration and the prevention and combating of crime.

(2) The creation of an area in which the free movement of persons across internal borders is ensured is one of the main achievements of the Union. It is important that the normal functioning and strengthening of such an area, which is based on trust and solidarity, is a common objective of the Union and the Member States which have agreed to take part in it. In that respect, the temporary reintroduction of border control at internal borders should be exceptional and used only as a last resort, where appropriate subject to consultation and cooperation between the Member States concerned and the Commission as guardian of the Treaties.

(3) Regulation (EU) 2016/399 of the European Parliament and of the Council (Schengen Borders Code) (4) lays down rules governing the movement of persons to and from the area without internal border control (the ‘Schengen Area’) as well as between the Member States that participate in the Schengen Area.

(4) 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 policy 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 in order to strengthen mutual trust and solidarity and to ensure the absence of any controls on persons, whatever their nationality, when crossing internal borders, while enabling Member States to provide an effective response to challenges they face.

(5) 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 which have abolished internal border control and the Union as a whole. Member States are required to ensure high standards in the 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 relevant Union agencies and management of the Schengen Evaluation and Monitoring Mechanism established by Council Regulation (EU) 2022/922 (5). 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 borders.

(6) European integrated border management is based on the four-tier access control model, set out in Regulation (EU) 2019/1896 of the European Parliament and of the Council (6). Border control, including measures to facilitate legitimate border crossings, forms a key part of the European integrated border management. In order to prevent and detect cross-border crime at the external borders, in particular migrant smuggling, trafficking in human beings, and terrorism, Member States together with the European Border and Coast Guard Agency, established by Regulation (EU) 2019/1896, should implement European integrated border management, based on the four-tier access control model.

(7) The COVID-19 pandemic has shown that threats to public health can require uniform rules concerning travel restrictions for travel into the 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 scale comparable to the COVID-19 pandemic, a new mechanism should be established which would allow for the adoption and lifting, in a timely manner, of coordinated measures at Union level. The new mechanism at the external border should be applied in the event of a large-scale public health emergency with a serious cross-border threat to health, recognised by the Commission at Union level without prejudice to Regulation (EU) 2022/2371 of the European Parliament and of the Council (7), taking into account information from competent national authorities.

(8) In the event of a large-scale public health emergency, the mechanism should provide for the adoption of an implementing Regulation setting out temporary restrictions on travel, including restrictions on entry and minimum temporary health-related restrictions, and the conditions for lifting them. In view of the politically sensitive nature of such restrictions which concern the right to enter the territory of Member States, implementing powers should be conferred on the Council to adopt such an implementing Regulation (the ‘implementing Regulation’), acting on a proposal from the Commission.

(9) 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, and in particular to the Member State in which they legally reside. The implementing Regulation should lay down minimum temporary health-related restrictions to which those persons could be subject. As regards third-country nationals legally residing in Ireland, Member States should, on a reciprocal basis, allow those residents to return to Ireland by transiting through the territory of the Member States. Ireland is invited to align its national policy with the restrictions on travel to the European Union. The implementing Regulation 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 identify, where required by the nature of the large-scale public health emergency, the categories of persons undertaking essential travel listed in Annex XI, part B, to be exempted from restrictions on entry and lay down the conditions under which it should be possible, exceptionally, for travel restrictions to be imposed on those travellers. In addition, or alternatively, the implementing Regulation should determine any geographical areas or third countries from which it should be possible to subject travel to specific measures and establish a procedure for the periodic review of the situation and of the travel restrictions, based on an objective methodology and objective criteria applicable to that procedure, including, in particular, the epidemiological situation. The implementing Regulation could specify the conditions under which travel might be permitted such as testing, quarantine, self-isolation or any other appropriate measures, such as a requirement to fill in a passenger locator form or to use 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 implementing Regulation could also set up a mechanism allowing additional measures to be taken in the event the epidemiological situation dramatically worsens in one or more geographical areas.

(10) The effectiveness of restrictions on travel to the Union is premised on applying uniform rules to third countries and third-country nationals. The application of uniform rules by means of the implementing Regulation should ensure the protection of public health and thus preserve the functioning of the area without internal border controls. Member States could adopt stricter temporary health and other related restrictions than those laid down in the implementing Regulation provided that such restrictions do not have a negative impact on the functioning of the area without internal border control. In addition, Member States could adopt restrictions on travel in the absence of an implementing Regulation. The implementing Regulation should take into account the specific situation of the Overseas Countries or Territories referred to in Article 355(2) of the Treaty on the Functioning of the European Union (TFEU) and listed in Annex II thereto.

(11) Transit within the Union for Union citizens and their family members, as well as for certain categories of essential travellers should not be subject to temporary health-related restrictions on travel to their final destination. Any temporary health-related restrictions to be applied, should be applied upon arrival at the final destination.

(12) It is also necessary to reinforce the rules and safeguards in Union law in order to allow Member States to act swiftly to counter situations of instrumentalisation. Such instrumentalisation should be understood within the meaning of Article 1(4), point (b), first sentence, of Regulation (EU) 2024/1359 of the European Parliament and of the Council (8). Situations in which hostile non-state actors are involved in organised crime, in particular migrant smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State. Furthermore, humanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State.

(13) As regards Cyprus, Council Regulation (EC) No 866/2004 (9) provides for specific rules that apply to the line between the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus exercises effective control and those areas in which it does not exercise effective control. Although that line does not constitute an external border, a situation where a third-country or hostile non-state actor encourages or facilitates the movement of third-country nationals to cross that line is considered as instrumentalisation.

(14) 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 temporarily 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-stay visas, as well as their respective family members. Such limitations should also be applied in a manner that ensures that obligations related to access to international protection, in particular the principle of non-refoulement, are respected.

(15) 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, the deployment of the European Border and Coast Guard standing corps, as well as assistance in search and rescue operations for persons in distress at sea, that are launched and carried out in accordance with Regulation (EU) No 656/2014 of the European Parliament and of the Council (10). The European Border and Coast Guard Agency’s new mandate offers considerable opportunities for Member States to be assisted in border control tasks, including, inter alia, with regard to screening and in return operations.

(16) Technical means to prevent unauthorised crossings of the border could include modern technologies such as drones and motion sensors, as well as mobile units, and, where appropriate, all types of stationary and mobile infrastructure. The use of such technical means, in particular, technologies capable of collecting personal data, needs to be based on and exercised in accordance with clearly defined provisions of national law.

(17) The power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission to supplement Regulation (EU) 2016/399 in respect of addition to Annex XI, Part B, of further categories of persons undertaking essential travel and in respect of additional measures governing surveillance, including the development of common minimum standards for border surveillance. Those common minimum standards should take into account the type of borders, i.e. land, sea or air borders, the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 and other relevant factors, such as geographical particularities. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (11). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

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

(19) While the prohibition of border control at internal borders also extends to checks having equivalent effect, checks by competent authorities of the Member States should not be considered equivalent to border checks where they do not have border control as an objective, where they are based on general police information and experience or public health information regarding possible threats to public security or public policy, where they aim in particular to combat cross-border crime, reduce illegal immigration or contain the spread of an infectious disease with epidemic potential as identified by the European Centre for Disease Control, where they are devised and executed in a manner clearly distinct from systematic checks on persons at the borders, and where they are conducted at transport hubs, such as ports, train or bus stations and airports as well as freight terminals or directly on board of passenger transport services, and where they are based on a risk assessment.

(20) The reduction of illegal immigration and of cross-border crime linked to it, such as trafficking in human beings, migrant smuggling and document fraud and other forms of cross-border crime, could encompass measures allowing for 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 a risk assessment.

(21) The use of modern technologies to monitor traffic flows, in particular 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 border control at internal borders 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 or that are based on a risk assessment for the purpose of protecting internal security.

(22) In order to allow for such technologies to be effective, it should be possible to apply proportionate speed limits at road crossing-points.

(23) In the exercise of police or other public powers by the competent authorities of the Member States in their territory, in particular in their border areas, it is important that the exercise of those powers does not have a disproportionate impact on the fluid traffic flow at road crossing-points at internal borders, in particular, by leading to excessive waiting times. In a spirit of dialogue and cooperation, it is important that Member States inform the neighbouring Member State of their actions, in particular when the action is expected to have a more significant effect on cross-border traffic.

(24) The prohibition of border control at internal borders should not restrict the carrying out of checks provided for under Union law. The rules provided for in this Regulation, do not therefore, affect the applicable rules regarding the carrying out of checks on passenger data against relevant databases in advance of arrival.

(25) It is necessary to ensure that checks carried out by Member States in exercise of national competences remain fully consistent with an area that is free of internal border control. In accordance with the case law of the Court of Justice of the European Union, the more extensive the indications are that checks conducted by Member States at their border areas have an effect equivalent to border control, having regard to the objective of such checks, their territorial scope and possible differences compared to checks carried out in the remainder of the territory of the Member State concerned, the greater the need for strict and detailed rules and limitations laying down the conditions for the exercise, by the Member States, of their police powers in a border area.