Explanatory Memorandum to COM(2004)391 - Community Code on the rules governing the movement of persons across borders

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dossier COM(2004)391 - Community Code on the rules governing the movement of persons across borders.
source COM(2004)391 EN
date 26-05-2004
1. INTRODUCTION

The Commission Communication Towards integrated management of the external borders of the Member States of the European Union of 7 May 2002 (hereafter 'Communication on external borders') i identified five essential components of the common policy on the integrated management of external borders:


a) a common corpus of legislation;

b) a common operational coordination and cooperation mechanism;

c) a common integrated risk analysis;

d) staff trained in the European dimension and interoperational equipment;

e) burden-sharing between Member States in the run-up to a European Corps of Border Guards.

As regards the common corpus of legislation, the recasting of the Common Manual on checks at the external borders i was identified as a measure to be taken in the short term, i in particular 'to clarify the legal status of its provisions and make them a source of law alongside other legal instruments in place' and to 'introduce into the Common Manual certain best practices, proceeding on the basis of the Schengen Catalogue of Best Practices'. i This was incorporated in the Plan for the management of external borders of the Member States of the European Union approved by the JHA Council on 13 June 2002 and backed by the Seville European Council of 21 and 22 June. The Thessaloniki Council of 19 and 20 June 2003 urged the Commission 'to present, as soon as possible, proposals on the recast of the Common Manual, including the stamping of travel documents of third-country nationals'. i





This is, therefore, an important initiative as part of the consolidation and development of the legislative side of the policy of integrated border management, just as the future European Agency for the management of operational cooperation at the external borders forms the key to developing the operational side of the policy. i Obviously, the role of the Agency will be fundamental in implementing the common rules provided for in Title II of this Regulation. An explicit reference is made to the Agency's role in Article 14 on operational cooperation between the Member States 'with a view to the effective implementation of border checks' (see the comments on this Article).


On the legislative side, the Common Manual, which was produced as part of the Schengen intergovernmental cooperation and incorporated in the institutional and legal framework of the European Union following the entry into force of the Treaty of Amsterdam, i is currently the basic instrument governing controls at the external borders of the Member States of the European Union, even though certain principles also appear in the Schengen Convention itself, i and a number of its specific provisions feature in other separate decisions. i




Although the Schengen acquis, i and in particular the Schengen provisions that have their legal base in the EC Treaty, i are now part of the Community acquis i that applies to all Member States, i it differs from normal Community law in certain respects:





- it is not standard Community law in that it does not take the form of characteristic instruments such as regulations and directives. This can lead to ambiguity about the legal value of certain Schengen provisions (see the considerations on the nature of the Common Manual, below);

- these are decisions and measures adopted in a purely intergovernmental framework and thus, obviously, without the participation of the Community institutions, i and particularly the European Parliament.


As a result, the question of 'converting' the Schengen acquis that was being incorporated into the Union into regular instruments of Community law was already being raised at the time of the first Scoreboard to review progress on the creation of an area of 'Freedom, security and justice' in the European Union, which dates from 24 March 2000. i The conclusion at that point was that 'the priority with which there is a need to convert Schengen provisions into 'Amsterdam" instruments will depend more on developments than on any absolute requirement to convert them for the sake of doing so" (COM(2000)167, point 1.3).


In the case of the Common Manual the policy reasons behind the decision on recasting were discussed above. From the technical and legal point of view, the Common Manual is something of a hybrid, in that it is both a source of Community law, creating as it does rights and obligations, and a practical handbook for border guards, theoretically containing all the information that is vital to them but borrowed from other legal sources as well.

The dual nature of the Common Manual can lead to ambiguities about its legal value, particularly as some of its sections and annexes merely reproduce the content of other instruments, such as the Schengen Convention or the Common Consular Instructions. i


The very first discussions about the need to revise the Common Manual date back to a few months after the entry into force of the Treaty of Amsterdam, following an initiative by the Finnish Presidency (October 1999) to send the Member States a questionnaire on the subject and on the confidentiality requirements of the Manual. The debate then continued through successive Presidencies, i during which it emerged that most of the Member States wished to amend, clarify or develop certain parts or provisions of the Manual. i As a result of these discussions, individual decisions were adopted abolishing or updating certain provisions of the Manual or declassifying parts of it, but no comprehensive and coherent review of the provisions on external borders has ever been achieved.



In view of the complexity of such an exercise, and the fact that a number of additional questions had arisen in the course of the debate, the Commission thought it advisable to start by presenting a working document on the subject (SEC(2003)736, 20.6.2003), to examine in depth the acquis on external borders, the gaps that exist and the problems related to the current structure of the Common Manual.

On the basis of this analysis, the working document presented various options for the future, and particularly on:

- whether to retain the present structure of the Manual or to clarify its legal status by making a clear distinction between the legislative instrument on the one hand and the practical handbook for border guards on the other;

- whether to restrict the operation to a simple clean-up of the current Manual or to expand certain parts in order to fill in the gaps identified, incorporating relevant provisions from other instruments where necessary;

- the need for a 'basic act' containing all the basic principles and rules on external frontiers which, under Article 202 of the Treaty, would then confer on the Commission the power to adopt the measures implementing the basic act.

The Commission also took the opportunity to consider the additional question of whether it might be worth extending the scope of the External Borders Code to cover internal borders too, thereby establishing a full Community code on the rules governing the movement of persons across borders, consisting of two parts - one on external borders, the other on internal borders.

A questionnaire containing these basic questions was sent to the Member States by the Presidency at the end of July 2003; the vast majority of delegations came out in favour of the Commission's proposals on separating the legal instrument and the practical handbook and on the need to go beyond a mere clean-up of the Manual. The majority of Member States did not express a definitive opinion about the other two questions, but agreed that further debate would be needed once there were some firm proposals on the table.

At the same time as this in-depth debate on the Common Manual was going on, proposals were presented on two specific areas in which the Council had asked the Commission to take measures quickly, namely local border traffic and the stamping of travel documents. i The content of these proposals has, of course, been included in this regulation, and once this proposal has been adopted it will replace the various individual initiatives on border matters.


Contents

1.

2. OBJECTIVES AND CONTENT OF THE PROPOSAL: FROM A RECASTING OF THE COMMON MANUAL TO A COMMUNITY CODE ON THE RULES GOVERNING THE MOVEMENT OF PERSONS ACROSS BORDERS


The objective of this proposal, as originally envisaged by the Commission in its Communication on external borders and as set out in the Plan for the management of external borders (see point 1 above), was to recast the Common Manual, i.e. remove obsolete and redundant provisions and develop or clarify points, as required, on the basis of an analysis of the problems encountered on the ground, the results of the Schengen evaluation missions, the recommendations in the Schengen Catalogue of Best Practices or work done on one or other issue in the relevant bodies of the Council.

However, in the course of the discussions about the subject it became clear that a more general debate was needed on the entire acquis relating to border checks on individuals - including the relevant provisions of the Schengen Convention and other decisions by the Executive Committee - in order to produce a consolidated and coherent text governing this field.

In addition, as explained in point 1, the Commission decided that this would be a good opportunity to look at the issue more generally and include internal borders as well, and specifically the arrangements for temporarily reintroducing checks at the internal borders of the area of free movement if circumstances warrant it.

It is therefore clear that this proposal for a regulation goes well beyond a mere recasting of the Common Manual, because it seeks to establish a genuine Community Code on the rules governing the movement of persons across borders, with one part on external borders (Title II) and one part on internal borders (Title III). The two parts are undeniably complementary, not only because of the way external borders are defined in relation to internal borders (Article 2 of the proposed regulation), but also because the checks that have to be made at the external borders (Title II of this regulation) are the same as those which are, in principle, prohibited at the internal borders, under Title III of the regulation (although they may be temporarily reinstated in exceptional circumstances; see Articles 20 to 24 of this Regulation).

In the case of internal borders, the content of Article 2 of the Schengen Convention and the decision of the Schengen Executive Committee SCH/Com-ex(95)20, rev. 2 are essentially taken over in the proposal, with certain modifications to suit the Community legal framework. In addition, a new element has been added to the existing acquis in the form of the possibility of jointly and simultaneously reintroducing checks at internal borders in the event of an exceptionally serious cross-border threat and, in particular, a cross-border terrorist threat.

In the case of external borders, a distinction is made between the basic principles governing checks - set out in Title II of the regulation, which broadly reproduces Articles 3 to 8 of the Schengen Convention and certain parts of the Common Manual - and the practical arrangements for implementing these checks, including the control arrangements specific to different types of border (land, air and maritime). These arrangements are included in Annexes I to XII to this Regulation and will, in future, be subject to amendment via a committee procedure, in accordance with Article 202 of the EC Treaty and Council Decision 1999/468/EC.

The reason for annexing these practical provisions to the basic regulation is that most of these rules already exist, because they are part of the Common Manual or incorporate other existing Schengen decisions. This will allow all the existing acquis on external and internal borders to be collated in a single instrument, thus establishing a genuine Community Code on the rules governing the movement of persons across borders.

At the same time, the Commission considers that these practical provisions are in fact measures implementing the principles set out in Title II of the regulation and, as such, should in future be amended according to a committee procedure (see Article 30 of the regulation). i


Although the content of these provisions largely reproduces the current text of the Common Manual, changes have been introduced where necessary, for example:

a) to remove provisions that are redundant (for example the repetition of certain articles of the Schengen Convention or certain parts of the Common Consular Instructions) or superfluous (for example the current paragraph 1.1 of Part I on the consequences of entry authorisation, because the right of movement within the Schengen area for a period of up to three months is already governed by other provisions of the acquis); i


b) to develop certain parts in the light of recent discussions in the competent bodies of the Council (for example on reorganisation of infrastructure/separate lanes at land border crossing-points and checks on private aircraft), proposals made by the Commission or a Member State on specific issues (such as local border traffic, stamping of travel documents, or refusal of entry), i as well as recommendations in the Schengen Catalogue of Best Practices. For the section on checks at maritime borders it proved necessary to undertake a more detailed examination, involving experts from the Member States. The new proposals, therefore, also take account of the discussion with these experts that took place in Brussels on 4 December 2003;


c) to clarify or update certain points, such as the paragraphs on seamen (point 6.5 of Part II of the current Manual).

A table correlating the provisions of the proposed regulation with those of the Schengen Convention, the Common Manual and the other Schengen decisions being replaced is given in Annex XIII. A table listing the provisions that have not been included and the reasons for their omission is also annexed.

Obviously, all the changes required by the change from an intergovernmental framework to the Community framework have also been made in the new text (e.g. substituting 'Member States' for 'Contracting Parties' and so on).

Once the discussions about this proposal are sufficiently well-advanced, the Commission will start to think about the form and content of the practical handbook for border guards. At this point it will be important to take into account the discussions that have already taken place on this question. i


2.

3. CHOICE OF LEGAL BASE


The proposed legal base for this regulation is Article 62 i and (2)(a) of the EC Treaty because this legislation involves both 'measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders' (Article 62(1)) and 'measures on the crossing of the external borders of the Member States', and specifically 'standards and procedures to be followed by Member States in carrying out checks on persons at such borders' (Article 62(2)(a)). i


Because the proposal is based on Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to free movement of persons), it must be presented and adopted in accordance with the protocols on the position of the United Kingdom, Ireland and Denmark, annexed to the Treaty of Amsterdam. Under Article 6 of the protocol integrating the Schengen acquis into the framework of the European Union (Schengen protocol), Norway and Iceland are also associated with the implementation and further development of the Schengen acquis. The consequences of the various protocols are examined in point 5 below.

3.

4. SUBSIDIARITY AND PROPORTIONALITY


Under Article 62 i and (2)(a) of the EC Treaty, the Community has the power to adopt measures relating to the crossing of the internal borders of the Member States, in order to ensure the absence of any controls on persons, and the crossing of the external borders. Such measures must be adopted within five years of the entry into force of the Treaty of Amsterdam.

The current Community provisions on the crossing of the external borders of the Member States and the absence of controls on persons at the internal borders form part of the Schengen acquis that has been integrated into the framework of the European Union. However, the existing acquis needs to be clarified, developed and supplemented. Obviously, the existing acquis on the internal and external borders can only be developed by adopting Community measures based on the EC Treaty.

Article 5 of the EC Treaty states that 'action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty'.

The form chosen for this Community action must enable the proposal to achieve its objective and be implemented as effectively as possible.

Given that the proposed initiative - the creation of a Community Code on the rules governing the movement of persons across borders - constitutes a further development of the Schengen acquis, the instrument is to be in the form of a regulation, in order to ensure that it is applied in the same way in all the Member States that apply the Schengen acquis.

4.

5. CONSEQUENCES OF THE VARIOUS PROTOCOLS ANNEXED TO THE TREATIES


The legal base for the proposals on measures relating to the crossing of the internal and external borders of the Member States is to be found in Title IV of the EC Treaty, with the result that the system of variable geometry, provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and the Schengen protocol, applies.

This proposal builds upon the Schengen acquis. Therefore the following consequences in relation to the various protocols have to be considered:

5.

United Kingdom and Ireland


Under Articles 4 and 5 of the protocol integrating the Schengen acquis into the framework of the European Union, 'Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or all of the provisions of this acquis'.

This proposal builds on the provisions of the Schengen acquis, in which the United Kingdom and Ireland do not participate, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis. The United Kingdom and Ireland do not, therefore, take part in its adoption and are not bound by this proposal or required to apply it.

In addition, as far as internal borders are concerned (Title III of the Regulation), account must also be taken of the protocol on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and Ireland, under which the United Kingdom and Ireland are allowed to adopt or exercise controls at their borders, including the borders of territories for whose external relations the United Kingdom is responsible. The same protocol allows the other Member States to exercise controls on persons entering their territory from the United Kingdom (or any territories whose external relations are under its responsibility) and from Ireland.

6.

Denmark


Under the Protocol on the position of Denmark, annexed to the Treaty of Amsterdam, Denmark does not take part in the adoption by the Council of the measures pursuant to Title IV of the EC Treaty, with the exception of 'measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas' (former Article 100c of the EC Treaty).

This proposal builds on the Schengen acquis, and under Article 5 of the Protocol 'Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community whether it will implement this decision in its national law'.

7.

Norway and Iceland


In accordance with the first paragraph of Article 6 of the Schengen protocol, an Agreement was concluded on 18 May 1999 between the Council, Norway and Iceland to associate these countries with the implementation, application and development of the Schengen acquis. i


Article 1 of this Agreement states that Norway and Iceland will be associated with the activities of the European Community and the European Union in the fields covered by the provisions referred to in Annexes A (provisions of the Schengen acquis) and B (provisions contained in the instruments of the European Community that replaced the corresponding provisions of the Convention signed at Schengen or adopted pursuant to it) to this Agreement and their further development.

Article 2 of the Agreement stipulates that all acts and measures taken by the European Union amending or building upon the Schengen acquis (Annexes A and B) will also be implemented and applied by Norway and Iceland.

This proposal supplements and builds on the Schengen acquis as defined in Annex A to the Agreement.

It must, therefore, be discussed in the Mixed Committee, as stated in Article 4 of the Agreement, to give Norway and Iceland the opportunity 'to explain the problems they encounter in respect of a particular act or measure' and 'to express themselves on any questions concerning the development of provisions of concern to them or the implementation thereof'.

8.

6. CONSEQUENCES FOR THE NEW MEMBER STATES OF THE TWO-STAGE PROCEDURE FOR IMPLEMENTING INSTRUMENTS BUILDING ON THE SCHENGEN ACQUIS


Article 3 i of the Act of Accession states that the provisions of the Schengen acquis and the acts building upon it or otherwise related to it, listed in Annex I to the Act, will be binding on and applicable in the new Member States from the date of accession. i Provisions and acts not referred to in the Annex, while binding on the new Member States from the date of accession, will only apply in a new Member State pursuant to a Council decision to that effect taken in accordance with the article (Article 3 i of the Act of Accession).


This is the two-stage implementation procedure, whereby certain provisions of the Schengen acquis are binding and applicable from the date of accession to the Union whereas others, specifically those linked intrinsically to the removal of checks at the internal borders, are binding from the date of accession but applicable in the new Member States only after the Council decision referred to above.

The Schengen provisions on external borders (Articles 3 to 8 of the Schengen Convention and their implementing decisions, in particular the Common Manual) are listed in the Annex and are therefore binding on and applicable to the new Member States from the date of accession. i


By contrast, the Schengen provisions on removing checks on persons at the internal borders are not listed in the Annex and are not, therefore, applicable to the new Member States from the date of accession.

As a result, this proposal, which replaces and builds on the Common Manual and certain provisions of the Schengen Convention with a view to establishing a Community Code on the rules governing the movement of persons across borders will, when adopted, be binding on and applicable to the new Member States only in respect of the provisions on the external borders (Title II and related Annexes, and Titles I and IV insofar as they refer to the provisions of Title II).

The provisions relating to the crossing of internal borders (Title III and Titles I and IV insofar as they refer to the provisions of Title III) will only apply in the new Member States pursuant to the Council decision referred to in Article 3 i of the Act of Accession.

9.

7. COMMENTS ON THE ARTICLES


Title I - General provisions

Article 1

This Article defines the purpose of the regulation, namely to lay down rules governing the movement of persons across borders, to include both rules on checks at external borders (Title II and Annexes) and rules on the removal of checks on persons at internal borders and the reintroduction of such checks in certain circumstances (Title III).

10.

Article 2


Most of the definitions given in this Article are taken from Article 1 of the Schengen Convention, although there was felt to be a need in certain cases to clarify or develop some of the existing definitions or to add new ones. They also had to be changed to take account of the Community framework and terminology (e.g. 'Member States' instead of 'Contracting Parties').

Obviously, references to 'Member States' in the definitions and, more generally, throughout the proposal, should be read in the light of, firstly, the Schengen Protocol, as regards the application of the Schengen acquis by the United Kingdom and Ireland (see point 5 above) and, secondly, Article 3 of the Treaty of Accession providing for the application of the Schengen acquis by the new Member States in two stages (point 6 above). In addition, the special position of Norway and Iceland with respect to the Schengen acquis must also be taken into account, as explained in point 5 above. In the Explanatory Memorandum the term 'Schengen States' is used for purely practical reasons to refer to the states which apply the Schengen acquis in full, in accordance with the Treaties and the various protocols annexed to them.

The definitions of 'internal borders' and 'external borders' are essentially taken from Article 1 of the Schengen Convention, which defines as internal borders the common land borders of the Schengen States, their airports for internal flights and their sea ports for regular ferry connections. The concept of 'lake ports' has been added here in order to include cases where a lake is surrounded by one or more Member States and by one or more non-Member State (e.g. Lake Constance, which is surrounded by Germany, Austria and Switzerland). i


The definition of 'internal flight' is also taken from Article 1 of the Convention and covers any flight exclusively to or from the territories of the Schengen States.

The definition of a 'regular ferry connection' has been added here because it forms part of the definition of internal borders. It is taken from the current definition in the part of the Manual dealing with checks on maritime traffic (point 3.4.1.5 of Part II), although it has been adapted to bring it into line with existing Community law. i


The concept of 'third-country national' is defined by default, by excluding citizens of the European Union within the meaning of Article 17 i of the EC Treaty. It therefore also includes refugees and stateless persons.

The definition of 'third country national for whom an alert has been issued for the purposes of refusing entry' is taken from Article 1 of the Schengen Convention and means any third country national for whom an alert has been issued for the purposes of refusing entry in the Schengen Information System in accordance with Article 96 of the Schengen Convention.

The concept of 'persons enjoying the Community right of free movement' is an innovation over the Convention and covers:

- Union citizens within the meaning of Article 17 i of the Treaty, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement, as referred to in Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which details the rights enjoyed by these categories (see commentary on Article 3);

- third-country nationals and their family members, whatever their nationality, who, under agreements between the Community and its Member States, on the one hand, and these countries, on the other, enjoy rights of free movement equivalent to those of citizens of the Union. This includes the countries party to the Agreement on the European Economic Area and the Swiss Confederation.

The definition of 'border crossing-point' is taken from Article 1 of the Schengen Convention and means any crossing-point authorised by the competent authorities for crossing external borders.

The concept of 'border check' is taken from Article 1 of the Schengen Convention and means a check carried out at a border in response exclusively to an intention to cross that border. To clarify the meaning and scope, the general concept of border check includes:

- checks carried out at authorised border crossing-points, and

- surveillance of borders outside authorised border crossing-points.

The definition of 'border guard' is given in order to simplify the reference to the national authorities responsible, in accordance with the national legislation of each Member State, for carrying out border control tasks.

The definition of 'local border traffic' is an innovation over the Schengen Convention and refers to Article 3 of the Commission proposal for a Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States, currently under discussion (COM(2003)502 final, 2003/0193(CNS)).

The definition of 'carrier' is wholly taken from Article 1 i of the Schengen Convention and refers to any natural or legal person whose occupation it is to provide passenger transport by air, sea or land.

The definition of 'residence permit' is taken from Article 1 i of Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third-country nationals. i This definition in turn is taken from Article 1 of the Schengen Convention, though to avoid all ambiguity it adds a provision that visas are not covered by the definition of 'residence permit'. Point (iii) of Article 1(2)(a) of Regulation (EC) No 1030/2002, which excludes certain residence permits issued by Member States not applying the provisions of Article 21 of the Schengen Convention (in particular the United Kingdom, though it does apply Regulation (EC) No 1030/2002), is not taken over as it is not relevant for the purposes of this Regulation.


These last three definitions are taken over from the current point 3.4.1, Part II, of the Common Manual.

11.

Article 3


This Article defines the scope of the proposal, which applies to all persons crossing the border of a Member State but without affecting the rights of certain specific categories under other instruments of Community law. Article 134 of the Schengen Convention (obsolete since 1 May 1999) already provided that 'The provisions of this Convention shall apply only in so far as they are compatible with Community law'.

Regarding persons enjoying the rights conferred by Community law, that means that this Regulation does not affect the provisions of Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, nor existing agreements with certain third countries on the free movement of persons (see commentary on Article 2). Article 5 of that Directive provides that Union citizens have the right to leave their territory to travel to another Member State with a valid identity card or passport (for family members who are not nationals of a Member State, this right shall be the same as for the Union citizen whom they accompany or join, though they can be required to hold a visa, which must be issued free of charge and give every facility). Consequently, Union citizens and other persons enjoying the Community right to free movement are subject to the thorough checks provided for by Article 6 only where there is evidence that the person represents a genuine, present and sufficiently serious threat affecting public order, public security or public health in a Member State. This also applies to refusals to admit (Article 11 of this Regulation): persons enjoying the rights given by Community law can be refused entry only where there is a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, in accordance with Article 27 of that Directive. The Directive also governs the procedural assurances given to persons enjoying the Community right to free movement where a decision refusing admission is taken.

As regards refugees and applicants for international protection, the reference is first and foremost to the rights conferred by the Geneva Convention of 28 July 1951 on the Status of Refugees, as amended by the New York Protocol of 31 January 1967, and the various instruments of Community law that have been or are being adopted on international protection.

The purpose of the reference to long-term residents within the meaning of Directive 2003/109/EC is to safeguard the rights conferred by that Directive, since long-term residents enjoy better terms than other third-country nationals as regards residence in other Member States.

12.

Title II - External borders


Article 4

Paragraphs 1 and 2 are taken over from Article 3 i of the Schengen Convention and points 1.3, 1.3.1, 1.3.2 and 1.3.3 of the Common Manual (Part I). These provisions establish the general principle that borders must be crossed only at authorised border crossing-points and during the fixed opening hours, though there are exceptions from this principle, for example under the regime of local border traffic, pleasure boating or coastal fishing and for seamen going ashore. An existing practice has also been added and spelled out, which is that specific crossing-points may be reserved for residents of border areas under the regime of local border traffic. This is consistent with the Commission proposals on the establishment of a regime of local border traffic (COM(2003)502 final).

The list of authorised border crossing-points is in Annex I to this Regulation (currently Annex 1 to the Manual).

Paragraph 3 is a version of Article 3 i of the Schengen Convention relating to penalties for the unauthorised crossing of external borders modified to make it conform more closely with Community practice without affecting the principle. A reference to international protection obligations has been added. This refers particularly to Article 31 of the Geneva Convention on refugee status; that Article prohibits the imposition of criminal penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

13.

Article 5


Paragraph 1 takes over the uniform entry conditions provided for by Article 5 i of the Schengen Convention. A Member State at whose border the third-country national presents himself is responsible for entry controls not only in its own interest but also in the interest of all the other Schengen States, since there are no longer any border controls within Schengen. That is why, for example, the assessment of the threat to public order and internal security must reflect the interests of all the Schengen States, initially via the SIS but also through the exchange of other relevant information between competent authorities.

In addition to the conditions provided for by the Schengen Convention, there is a new condition of not representing a threat to public health. In certain limited circumstances, this is already seen as a valid ground for refusing entry of a Union citizen (Directive 64/221/EEC). It is taken over in the new Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which specifies how the criterion is to be applied. The introduction of public health in this Regulation brings the two pieces of legislation into line and avoids differences of treatment between Union and third-country nationals.

The documents that are valid for crossing borders are determined by Executive Committee Decisions SCH/Com-ex (98)56 and SCH/Com-ex (99)14 of 28.4.1999, i which establish among other things a Table of travel documents entitling the holder to cross the external borders and to which a visa may be affixed, periodically updated by the Council General Secretariat.


Paragraph 2 refers to Annex II as regards the supporting documents and information used to verify fulfilment of the conditions set out in paragraph 1. Clearly, such documentary evidence, concerning the reasons for entry for a short stay in the Member States, should not be required of third-country nationals who hold a valid residence permit issued by a Member State. The existing categories (business trips, journeys undertaken for the purposes of tourism, etc.) are supplemented by a point concerning the documentary evidence to be produced by persons eligible for a local border traffic regime. This is linked to the two Commission proposals for Regulations on the establishment of a regime of local border traffic (COM(2003) 502 final), which mention, among the conditions for entry, the existence of 'documents proving their status of border residents and the existence of legitimate reasons to frequently cross the border ... such as family links, social, cultural or economic motives'. It is therefore necessary to spell out, at least for guidance, what types of document may actually be required of border residents under a local border traffic regime. And a point has been added concerning the obligation on third-country nationals requiring a visa to have travel insurance cover. This incorporates, with minor adjustments, the paragraph recently inserted into the Common Manual by the Council Decision on travel insurance (Decision 2004/17/EC of 22 December 2003).

Paragraph 3 concerns criteria for assessing means of subsistence; it refers to Annex III (currently Annex 10 to the Manual) for the reference amounts required for crossing borders fixed annually by the national authorities.

The principle in paragraph 4 is not explicit in Article 5 of the Schengen Convention, but it flows from Article 21 (which provides for the possibility for the holder of a residence document issued in a Schengen State to travel to other Schengen States for three months). It is also mentioned in the current point 6.2 of Part II of the Manual.

Paragraph 5 takes over Article 5 i of the Schengen Convention on the admission in transit of third-country nationals holding a residence permit or authorisation or a re-entry visa issued by one of the Member States - even if they do not fulfil all the entry conditions - unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross.

Paragraph 7 specifies that the residence permits and authorisations referred to in paragraphs 4 and 5 cover all residence permits issued by the Member States (on or after 12 August 2004) according to the uniform format laid down by Regulation (EC) No 1030/2002, which establishes a uniform format for residence documents, and all other residence permits and authorisations and return visas referred to in Annex 4 to the Common Consular Instructions.

14.

Article 6


This Article, which broadly takes over Article 6 i and i of the Schengen Convention and point 1.2 of Part II of the Common Manual, determines uniform principles for conducting border checks.

Paragraph 2 specifies that all persons crossing external borders, including Union citizens, must undergo a check in order to establish their identities on the basis of the production or presentation of their travel documents. It is then specified that checks must be carried out by each Member State in accordance with its legislation and may also cover the vehicles and objects in the possession of the persons crossing the border. For the purposes of this Regulation, however, checks on vehicles and articles belonging to a person crossing an external border are designed solely to verify compliance with the conditions laid down in Article 5, in particular the prevention of illegal immigration (for example, checks that illegal migrants are not concealed in a vehicle) and possible threats to the Member States' internal security and public order (for example, checks that the person is not in possession of weapons or other dangerous objects). But it does not preclude other types of checks (customs, veterinary and plant-health checks, for instance) being carried out on the basis of the relevant Community or national legislation.

On entry and exit, third-country nationals must be subject to a thorough check (paragraph 3), to verify the purpose of their visit and ensure that they do not constitute threats to the public policy, internal security and public health of the Member States.

As has been seen (commentary on Article 3), thorough checks are not to be made on persons enjoying the Community right to free movement unless there is evidence that the person represents a genuine, present and sufficiently serious threat affecting public order, public security or public health in a Member State.

Paragraph 4 refers to Annex 4 as regards the practical details of checks on persons.

15.

Article 7


This Article is an amended version of the current Article 6(2)(e) of the Schengen Convention. The new formulation, in particular as it limits la possibility of refraining from making checks to 'unforeseen and exceptional circumstances', is taken over from the Commission proposal on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third-country nationals (COM(2003)664, 6 November 2003). In addition, the possibility for a third-country national to have his travel document stamped even where checks are relaxed is also taken over from that proposal.

Paragraph 3 specifies that the detailed rules for relaxing checks and the criteria for prioritisation are in Annex V. As in the current legislation, entry checks take priority over exit checks.

16.

Article 8


This new Article introduces horizontal provisions on the installation of separate lanes at border crossing-points and the minimum indications to be given on signs. The provision of separate control lanes in order to distinguish between the channels intended for persons enjoying the Community right to free movement and those intended for third-country nationals is currently required, by Decision SCH/Com-ex (94)17 rev. 4, i only in the case of international airports. That Decision provides for uniform minimum markings to distinguish between EU and non-EU nationals. As regards maritime borders, and more specifically checks on passengers on board ferries, the current Part II, point 3.4.4.5 of the Manual stipulates that 'where possible, the necessary construction work should be undertaken' to ensure that a distinction is drawn between the controls carried out on EU/EEA nationals and those carried out on third-country nationals. The rules, as they currently stand, are silent as regards the installation of separate lanes at land borders.


This new Article is therefore based on the existing provisions but also takes account of discussions initiated in the course of 2003 within the Working Party on Frontiers, and in particular the proposal for a Council Decision determining the minimum indications to be used on signs at border posts i and the Council conclusions on the introduction of separate lanes at the external border crossing-points. i



The obligation to establish separate lanes in international airports is maintained. But the installation of separate lanes at Member States' maritime and land crossing-points remains optional. Specific provisions on the organisation of lanes at land borders are in Annex X (see commentary below).

As regards the minimum indications to be used on signs, the content of the above proposal for a decision has been incorporated in order to take account of the need to include Swiss nationals and members of their families among those enjoying the Community right to free movement, following the entry into force on 1 June 2002 of the Agreement on the free movement of persons concluded with Switzerland. Persons enjoying the Community right to free movement may also use the other lanes, which are no longer marked 'NON EU/EEA' but 'ALL PASSPORTS'. The models for these signs are set out in Annex VI.

Member States must have adapted all signs at border crossing-points by 31 May 2009; however, where they replace existing signs or put up new ones before that date, the minimum indications stipulated here must be respected. This has also been taken from the abovementioned proposal.

At borders between Member States that have not yet abolished controls at their common borders owing to the two-stage application of the Schengen acquis, the application of this Article remains optional. This is to avoid requiring Member States to undertake excessive investments at borders which, by their nature, will only temporarily serve as external borders.

17.

Article 9


The stamping of travel documents is currently governed by point 2.1 of Part II of the Common Manual. In conformity with the proposal on stamping mentioned above, the obligation to stamp travel documents 'systematically' on entry is now provided for (paragraph 1).

Paragraph 2 provides for exceptions from the principle of stamping the travel documents of third-country nationals: apart from taking over the exceptions in points 2.1.1, 2.1.5 and 2.1.6 of Part II of the Manual, it also provides for an exemption from stamping for people who come under the regime of local border traffic for the sake of consistency with the proposals on the regime of local border traffic and stamping mentioned above.

Regarding exit stamps, paragraph 3 provides that they must be affixed systematically to documents bearing a multiple-entry visa with an aggregate limit on the duration of stays.

And paragraph 4 refers to Annex VII for the practical rules governing stamping. The procedures for stamping documents and the shape and characteristics of the stamp have not been changed; provisions have nevertheless been added that reflect the conclusions of the Justice and Home Affairs Council of 5 and 6 June 2003 regarding special security features of uniform entry and exit stamps (Council document 9390/03 FRONT 60 COMIX 308). These provisions stipulate among other things that the security codes must be changed frequently and that the same security code must not be valid for more than one month. A system for exchanging information on the security codes used on stamps and on lost and stolen stamps is also set up; the information is to be exchanged inter alia via the national contact points responsible for exchanging information on the security codes of the entry and exit stamps used at border crossing-points (listed in Council document 7221/03 FRONT 23 COMIX 147 (EU RESTRICTED)).

18.

Article 10


This Article, relating to surveillance between crossing-points, takes over Article 6 i of the Schengen Convention and point 2.2 of Part II of the Common Manual. Detailed rules governing border surveillance are to be adopted by the committee procedure provided for by Article 30 of this Regulation.

19.

Article 11


Paragraph 1 takes over Article 5 i of the Schengen Convention relating to refusals to allow entry for third-country nationals who do not fulfil all the entry conditions laid down in Article 6 of this Regulation, including the fact that a Member State may in exceptional circumstances allow entry on humanitarian grounds, on grounds of national interest or because of international obligations.

Paragraph 2 refers to cases where a person without a visa - and therefore who does not fulfil all the entry conditions - who fulfils the conditions laid down in Article 1 of Regulation (EC) No 415/2003 may have a visa issued at the border. This concerns people who have not been able to apply for a visa in advance for unforeseeable reasons but who fulfil all the other conditions for entry and whose return to the country of origin or transit is assured. Points 5 and 5.1 of Part II of the Manual have been replaced, following the entry into force of Regulation (EC) No 415/2003, by a reference to the Regulation itself.

Paragraph 3 takes over points 1.4.1 and 1.4.2 of Part II of the Common Manual. There is also a reference to the standard form in Annex VIII, Part B, for the third-country national to acknowledge receipt of the refusal decision. The same Annex (Part A) sets out detailed rules governing refusals.

Paragraph 4 determines the obligation for border guards to ensure that a third-country national refused entry does not enter the territory of the Member State concerned.

20.

Article 12


This Article takes over Article 6 i and i of the Schengen Convention, requiring Member States to 'deploy appropriate staff ... in sufficient numbers' but adds the idea that 'resources' must also be appropriate to carry out a high degree of controls at the external borders.

21.

Article 13


Article 13 i is taken over from points 1.1.1 and 1.1.2 of Part II of the Common Manual; it merely requires border checks for the purposes of this Regulation to be carried out by the services of the Member States responsible for border guard duties in accordance with national law, border guards being vested with the powers of border police and the powers to instigate criminal proceedings.

Paragraph 3 provides that the list of national services responsible for border guard duties under the national law of each Member State is given in Annex IX to the Regulation, rather than in the Regulation itself, as in the Common Manual.

Paragraph 4 is a new provision requiring the Member States - where several services are responsible for border-guard duties under national legislation - to ensure the coordination and cooperation between all such services which is necessary for effective border checks.

22.

Article 14


This Article replaces Article 7 of the Schengen Convention and points 4, 4.1 and 4.2 of Part II of the Common Manual, relating to cooperation between Member States for the effective implementation of border checks. Instead of taking over existing provisions, it refers to the future European Agency for the Management of Operational Cooperation at the External Borders, which will handle tasks of operational cooperation between Member States, including the exchange of information; harmonisation of instructions and the common component of the training of border guards; coordination of joint operations between Member States; common risk assessment; and the management of common technical equipment.

23.

Article 15


This is a new Article inspired by current practice and the conclusions of the JHA Council of 27 and 28 November 2003, i concerning the adoption of flexible land border control measures in the run-up to enlargement of the Union.


Given the two-stage procedure for implementing Schengen (see point 6), the new Member States will not be fully applying the Schengen acquis immediately from accession, and checks on persons at common borders between the existing and the new Member States and between the new Member States themselves will continue to operate place until the Schengen acquis is fully applied by the new Member States. The rules applicable at these borders - which can be regarded as 'temporary external borders' - will be the same as those that apply at Schengen external borders.

Paragraph 1 therefore provides that the Member States that do not apply Article 18 and have not yet, therefore, abolished checks at their common land borders may, up to the date of application of this Article, jointly control those common borders, subject to respect for the principles and criteria established by this Regulation for external border checks. Member States may conclude bilateral arrangements between themselves to govern their joint controls, but they must inform the Commission.

24.

Chapter 4 - Special detailed rules for border checks and specific procedures


Article 16

This Article refers to Annex X as regards special detailed rules for different types of border (land, air and maritime and the different means of transport used for crossing the Member States' external borders. Detailed commentary on the main changes made in relation to existing provisions:

25.

Land borders


Point 1.1 deals with checks on road traffic and incorporates Part II, point 3.1 of the Common Manual. This is supplemented with provisions on the possibility of installing separate control lanes at land border crossing-points, which take account of the Council conclusions of 8 May 2003 (see also the comments on the relevant horizontal provisions).

The installation of separate control lanes is not made compulsory at land border crossing-points; it is an option left open to the Member States if they deem it appropriate and if circumstances - in particular local traffic conditions - allow. Separate lanes may furthermore be dispensed with at any time by the Member States' competent authorities in 'exceptional circumstances' and 'where traffic and infrastructure conditions so require' (also taken from the abovementioned Council conclusions).

Nevertheless, where a Member State decides to use separate lanes at land border crossing-points, the uniform minimum markings specified in Article 8 must be used on signs.

Member States may also provide separate lanes for those eligible for a local border traffic regime. This is in line with the abovementioned proposals for Regulations on local border traffic.

Point 1.2 covers rail traffic and incorporates Part II, point 3.2, of the Manual. This part has not undergone substantial amendment, only formal and drafting changes designed to make it clearer.

26.

Air borders


Point 2 of Annex X incorporates Part II, points 3.3, 3.3.1 to 3.3.7 of the Manual (except the obsolete or redundant provisions, such as the reproduction of Article 4 of the Schengen Convention or the examples), certain parts of Decision SCH/Com-ex (94)17 rev. 4 and the guidelines on improving the effectiveness of checks carried out on international civil aviation (passengers on private flights) adopted by the Working Party on Frontiers on 5 June 2003. i


Point 2.1 of this section sets out the procedures for checking passengers at international airports.

In order to be able to distinguish between passengers from internal flights, who are not subject to checks, and passengers from all other flights, who must be checked, measures must be taken to physically separate the inflows of passengers. To that end, the Member States' competent authorities are required to put the appropriate infrastructures in place in cooperation with the airport operator. In practice, this could be done for example by partitioning the checking areas or handling the traffic in separate terminals.

The place where persons and hand baggage are checked is then determined, in particular for transfer flights.

It is also stipulated that checks on passengers are normally made outside the aircraft; to that end, Member States must take the appropriate measures, in agreement and in cooperation with the airport authorities and the carriers, to ensure that passenger traffic is channelled to facilities reserved for checks. Specific rules concerning checks on aircrews are laid down in Annex X.

Lastly, where an aircraft on an international flight (or a foreign aircraft) is forced to land on an unauthorised landing ground because of force majeure or imminent danger or on the instruction of the authorities, it may continue its flight only after authorisation from the authorities responsible for border checks. Under no circumstances may any exception be made to the relevant rules on passenger checks.

Point 2.2 lays down the specific procedures for checks in airports that do not have the status of international airport (aerodromes). Given the more limited traffic in airports of this type than in the international airports, it is not usually necessary to make appropriate arrangements in order to physically separate passengers or to ensure that border guards are present at all times. This is without prejudice to Regulation (EC) No 2320/2002 establishing common rules in the field of civil aviation security, and in particular to the obligation for Member States to inspect/filter passengers to prevent prohibited articles being brought into security restricted areas into which access is controlled or on board aircraft. It must also be guaranteed that, if need be, the necessary personnel for checks can be deployed in good time. To that end, the director of the aerodrome must give adequate notice to the competent authorities of the arrival and departure of internationally routed aircraft.

Point 2.3 groups together points 3.3.5 and 3.3.7 of the Manual concerning private flights (including gliders, micro-light aircraft, etc.), having due regard to the abovementioned guidelines on improving the effectiveness of checks carried out on international civil aviation adopted by the Working Party on Frontiers.

In comparison with the existing provisions, this chapter introduces the obligation on the captain to transmit to the border authorities of the Member State of destination and arrival, prior to take-off, a general declaration comprising a flight plan (in line with Annex 2 to the Convention on International Civil Aviation) and information on the passengers' identity.

In addition, where a private flight coming from a third State and bound for a Member State makes a stop-over in the territory of another Member State, the competent authorities of the Member State of entry must always carry out a check and affix an entry stamp to the abovementioned general declaration, so that the Member State of destination is aware that an entry check has already been made.

In any event, where there is uncertainty as to the origin or destination of a private aircraft - and therefore as to whether it is an internal flight - a check must always be carried out on the persons concerned. This applies both to international airports and to aerodromes.

Lastly, it is stipulated that the arrangements governing gliders, micro-light aircraft, helicopters and the like are laid down by national law and, where applicable, by bilateral agreements.

27.

Sea borders


This section, and more specifically the chapter dealing with checks on maritime traffic (Chapter 3.1), has been thoroughly overhauled in the light of the difficulties that have arisen in applying the existing provisions of the Manual, in particular during the Schengen evaluations. Account has also been taken of the points raised by the feasibility study on checks at the maritime borders of the European Union carried out by the consultant Civipol Conseils, which reported its findings in July 2003. The provisions of this section furthermore incorporate the content of the programme of measures to combat illegal immigration across the maritime borders of the Member States of the European Union adopted by the Council on 27 November 2003 i and reflect the discussions held on this part of the text at an informal meeting of national experts held on 4 December 2003.


Point 3.1 incorporates the whole of the current Part II, point 3.4 of the Common Manual, devoted to checks on maritime traffic.

It was not felt necessary to reproduce some of the definitions given in the current point 3.4.1 (for example, 'maritime traffic', 'passenger', 'crew'). The other definitions - 'regular ferry connection', 'cruise vessel', 'pleasure vessel' and 'coastal fishing' - are taken over from Article 2.

The new point 3.2 of Annex IX groups together the specific procedures for certain types of shipping set out under point 3.4.4 of the Manual. Given the definition of internal and external maritime borders (see Article 2 of this Regulation), ports are as a rule always treated as external borders; any vessel must therefore be checked on each entry and exit, since it is impossible to ascertain what happens outside port, whether in territorial or in international waters (embarkation/disembarkation of persons or goods). Nevertheless, in view of the nature of certain types of shipping, the principle of systematic checks may be waived.

Point 3.4.4.1 of the Common Manual has not been included in this part since, as it deals with ferry services between two Schengen ports, it involves the crossing of internal and not external borders.

Points 3.2.1 to 3.2.3 deal with the movements of cruise ships. They correspond to the current point 3.4.4.2, which has been supplemented in order to incorporate the policy lines determined by the programme of measures to combat illegal immigration across maritime borders and the recommendations on cruise ships included in the Schengen catalogue. Checks on cruise ship passengers are normally carried out only at the first and last port situated within Schengen territory, but they may nevertheless be made at other ports during the cruise, according to the assessment of the risks of illegal immigration. The treatment to be given to persons who must be refused entry to the territory is also stipulated.

Points 3.2.4 to 3.2.7 correspond to point 3.4.4.3 relating to pleasure shipping. They also include new provisions based on the recommendations set out in the abovementioned programme of measures and the Schengen catalogue. Pleasure boats are required to dock in an authorised port of entry, and the authorities responsible for checks must be informed if this rule is departed from in exceptional circumstances or cases of force majeure. A document containing all the technical characteristics of the vessel and the names of the persons on board must be handed over to the authorities. Allowance is made for persons making daytime pleasure boat excursions who are known to the authorities, subject to the assessment of the risks of illegal immigration.

Points 3.2.8 and 3.2.9 deal with coastal fisheries (currently point 3.4.4.4 of the Common Manual) and incorporate similar amendments to the preceding points. Checks on coastal fisheries vessels that return to port every day or nearly every day are not to be carried out systematically, subject to the assessment of the risks of illegal immigration. The ship's captain is required to notify the authorities of any changes in his crew and of the presence of any passengers.

Point 3.2.10 takes over almost word-for-word point 3.4.4.5 of the Common Manual concerning ferry services subject to controls.

Point 3.3, which relates to inland waterways shipping and corresponds to Part II, point 3.5 of the Manual, has not been amended. In practice, the same rules on checks at maritime borders apply mutatis mutandis to this type of shipping.

28.

Article 17


This Article provides for the possibility of establishing specific procedures for checking certain categories of persons, including aircrew, seamen, holders of diplomatic, official or service passports members of international organisations, border workers and minors. These specific procedures are described in Annex XI. This Annex takes over some of the provisions of Part II, point 6 of the Manual, excluding points 6.1 (EU citizens and members of their family), 6.2 (third-country nationals holding a residence permit issued by another Member State), 6.3 (refugees and stateless persons), 6.9 (group trips) and 6.10 (application for asylum at the border).

Point 6.1 has not been incorporated because, as already explained, the rules on entry and residence applicable to citizens of the Union and, in general, persons enjoying the Community right to free movement are already laid down in the relevant provisions of Community law. There is therefore no need to reproduce here provisions that are already contained in other Community instruments; in any event, Article 3 of the Regulation clearly stipulates that the rights of persons enjoying the Community right to free movement are not affected by the provisions of this Regulation.

Point 6.2 has already been incorporated in Article 6 i of the Regulation.

Point 6.3 has not been included since, in the first place, recognition of the travel documents of third-country nationals, including refugees and stateless persons, has not been harmonised and is therefore the responsibility of each of the Member States, which currently confine themselves to notifying the Council General Secretariat of their decisions in this area i (and this part is in any case not even up to date). Secondly, the visa requirements for these categories of persons are already laid down in Article 3 of Regulation (EC) No 539/2001 and there is therefore no need to insert specific provisions here. Thirdly, the second paragraph of Part II, point 6.3.2 of the Manual ("Holders of a travel document for stateless persons shall be subject to the requirement for an entry visa unless they hold a residence permit issued by one of the [Schengen States]") is even in contradiction with Regulation (EC) No 539/2001, since the latter allows exemption from the visa requirement for holders of a travel document for stateless persons issued by a third country exempted from the visa requirement in whose territory they lawfully reside (second indent of Article 3 of that Regulation).


Point 6.9, concerning the possibility of relaxing controls on group trip participants (and particularly for coaches conveying groups of pilgrims or for school trips), has not been taken over since it is in contradiction with the general system of control and especially with the obligation systematically to stamp travel documents on entry to the Schengen area.

Lastly, point 6.10, which merely provides that, if an alien requests asylum at the border, the national laws of the Member State concerned apply until it is determined who has responsibility for dealing with the application for asylum, is superfluous and has not been incorporated either. Article 3 of the Regulation furthermore already refers to the obligations of the Member States with regard to asylum and international protection.

The parts which have on the contrary been included are: point 6.4 of the Manual, concerning pilots of aircraft and other crew members (point 1 of this Annex); the current point 6.5, on seamen (point 2); the current points 6.6 and 6.11, concerning holders of diplomatic, official or service passports and members of international organisations (point 3); the current point 6.7, on cross-border workers (point 4); and point 6.8, on minors (point 5).

29.

Pilots of aircraft


Point 1, concerning aircraft pilots and crew members, has not been substantively amended in comparison with point 6.4 of the Manual, which lays down specific arrangements - based on Annex 9 to the Civil Aviation Convention of 7 December 1944, in particular points 3.74 and 3.75 thereof - for the holders of a pilot's licence or a crew member certificate. This part has nevertheless been reworded in order to spell out very clearly the rights of this category of persons, and in particular their right, in the course of their duties and on the basis of their pilot's licence or crew member certificate - and therefore without having to hold a passport and a visa - to enter the territory of the municipality of the airport and to go to any airport situated in the territory of a Member State.

30.

Seamen


On the other hand, point 2, on seamen, has been substantially amended in comparison with the current point 6.5 of the Manual in order to clarify the meaning and scope of the provisions and update them in line with developments at international level (in particular the new Geneva Convention - No 185 - signed on 19 June 2003).

The new text provides that seamen holding a seafarer's identity document - the reference to the seaman's book has been deleted since it constitutes neither an identity nor a travel document - issued in accordance with the 1965 London Convention (FAL) and Geneva Convention No 185 may go ashore to stay in the area of the port where their ship calls or in the adjacent municipalities, without presenting themselves at a border crossing-point. This is subject to the condition that they appear on the crew list, previously submitted for checking, of the ship they belong to. To this has been added the obligation to carry out a visual (face-to-face) check on the seaman, before he goes ashore, where the assessment of the migration and security risks so requires. On the other hand, the obligation to hold a visa has been deleted since this is already governed by Article 4(1)(b) and (c) of Regulation (EC) No 539/2001 (and the different language versions of the Manual furthermore diverge on this point: some versions require the seaman to hold a visa in all cases, others 'where appropriate').

The obligation to fulfil all the conditions for entry as laid down in Article 5 of the Regulation is maintained for seamen intending to stay outside the municipalities situated in the vicinity of ports. Exceptions to this principle, and in particular to the obligation to hold a visa and have sufficient means of subsistence, are nevertheless possible in specific cases. Seamen without a visa can be issued with one at the border pursuant to Regulation (EC) No 415/2003, which, in addition to stipulating the cases and conditions in which visas may be issued at the border (in general), contains specific provisions on the issue of visas of this type to seamen in transit.

Border guards must in any event check that the seamen in question fulfil the other conditions for entry laid down in Article 5, i.e. that they hold a valid travel document, that they have not been the subject of an alert in the SIS for the purposes of being refused entry, and that they do not constitute a threat to the public policy, internal security or public health of the Member States. Border guards must also check, if necessary and where applicable, certain additional items such as a written declaration by the shipowner or shipowner's agent concerned, a written declaration by the appropriate diplomatic or consular authorities, proof obtained as a result of specific verification by the police authorities or, where appropriate, by other competent administrations.

31.

Holders of diplomatic, official or service passports and members of international organisations


Point 3 covers both the existing point on holders of diplomatic, official or service passports and the point setting out the arrangements for holders of documents issued by certain international organisations, since the two categories are subject to similar rules (where differences existed, they have been maintained). The documents issued by international organisations for the purposes of this chapter comprise: the laissez-passer issued by the United Nations (and subordinate agencies), the European Community and Euratom; the legitimacy certificate issued by the Secretary-General of the Council of Europe; and documents issued by a NATO headquarters (namely a military ID card accompanied by a travel order, a travel warrant or an individual or group service order).

In view of the privileges and immunities they enjoy, these categories of persons may be granted favourable treatment by being given priority over other travellers at border checks; neither are they, as a general rule, required to prove that they have adequate means of subsistence. Their status does not, however, automatically exempt them from the visa requirement: the visa exemption for holders of diplomatic, official or service passports remains an option for the Member States, pursuant to Article 4(1)(a) of Regulation (EC) No 539/2001.

It is also stipulated that holders of diplomatic, official or service passports may under no circumstances be refused entry to the territory without the border guard first informing the competent national authorities, even where an alert has been entered in the SIS for the person concerned.

Reference is made in Article 17 i to the cards issued by the Ministry of Foreign Affairs to accredited members of diplomatic missions and of consular representations and their families, specimens of which are shown in Annex XII (currently Annex 13 to the Manual). These cards, which are equivalent to a residence permit, enable the holders - if accompanied by a valid travel document - to cross Member States' borders without having to apply for a visa.

When carrying out checks, border guards may of course require the person concerned to provide proof of his diplomatic status or at least of his entitlement to privileges, immunities or exemptions; in case of doubt, further checks may also be made with the relevant Ministry of Foreign Affairs.

32.

Cross-border workers


Point 4 adds to the existing text, which referred to the possibility of carrying out only spot checks on cross-border workers, the principle that cross-border workers should automatically qualify for any practical simplifications introduced under a regime for local border traffic, in particular the right to cross the border at specific crossing-points or through reserved lanes, and the exemption from the obligation to have their travel document stamped. This is prompted by the fact that cross-border workers cannot be covered by the proposals for local border traffic, which relate only to short stays.

33.

Minors


Point 5, on minors (currently point 6.8), provides first of all that this category must be subject to the same entry and exit checks as adults. The existing provisions have been strengthened on the basis of the initiative presented by the Italian Presidency on 2 October 2003 (Council document 13124/03 FRONT 133 COMIX 588). In the case of accompanied minors, the obligation has been added for the border guards to carry out extra checks (separate interviews with the minor, if necessary) where there are serious grounds for suspecting that the minor has been unlawfully removed from the custody of the person legally exercising parental care over him.

As far as unaccompanied minors are concerned, border guards must also take special care, when carrying out exit checks in particular, to ensure - by means of thorough checks on travel documents and supporting documents concerning the reasons for and details of the journey - that they do not leave the territory without the authorisation of the person(s) having parental care over them.

34.

Title III - Internal borders


Article 18

Article 18 i confirms the principle that border checks on persons, irrespective of their nationality, are abolished at internal borders in accordance with the Schengen acquis (Article 2 i of the Convention) and with the objective set by Article 14 of the EC Treaty. It follows that crossing an internal border should not be the occasion for checks or formalities and that as a rule anybody is free to cross internal borders at any point. All routine and random checks on people crossing internal borders are incompatible with the idea of the area without frontiers and are therefore prohibited (without prejudice to Articles 20 to 24 of this Regulation). Crossing the internal border between two Member States applying the Schengen acquis should be treated no differently from moving between regions, provinces or other administrative subdivisions of a Member State.

35.

Article 19


Article 19 takes over and amplifies Article 2 i of the Schengen Convention.

Point a) provides that checks on persons in the discharge of general police powers are allowed throughout the territory. It follows that checks on this basis in border areas are not incompatible with the right to cross internal borders without being checked, provided they are carried out in accordance with the same frequency and intensity as checks in the territory generally. A Member State cannot, therefore, lay down provisions applicable solely in the internal border area, determining for instance a perimeter zone for identity checks on a random or visual basis not carried out elsewhere in the country. Even reduced checks in a border-crossing area or nearby areas are unacceptable. The purpose of the checks is the decisive factor.

Point (b) allows security checks carried out at ports and airports by the competent authorities, by port or airport officials or carriers on persons at or prior to embarkation on aircraft or ships. Such checks are to ensure that passengers are not carrying weapons or dangerous articles or substances. They can also serve to verify the traveller's identity if he has a ticket issued to a named person. They may also be useful where public order or the safety of passengers might be threatened if known trouble-makers embark.

Points c) and d) provide that the Regulation does not affect the obligation to hold or carry documents if this is provided for in the national legislation of a Member State, nor the obligation on third-country nationals to report their presence on the territory of any Member State pursuant to national legislation in accordance with Community law (particularly Article 22 of the Schengen Convention relating to the report on entry).

36.

Article 20


The abolition of checks on persons at internal borders should not jeopardise security in the frontier-free area. Flanking measures have been introduced to preserve a high level of security.

But there can be exceptional risk situations to which these instruments do not offer an adequate response, in which it might be necessary to reintroduce checks on persons at internal borders. This Article, inspired by Article 2 i of the Schengen Convention, determines the conditions in which a Member State may reintroduce checks and the procedure to be followed.

As currently provided by the Schengen Convention, a Member State may reintroduce border checks at its internal borders in the event of a serious threat to public policy, public health or internal security. Public health has been added since it is also among the conditions for entry in Article 5 (see commentary on that Article). This proposal provides that there must be a serious threat to public policy, public health or internal security. This makes clear that the safeguard clause is a purely exceptional measure.

Since it is an exceptional measure, the reintroduction of checks at internal borders can only be for a limited period of no more than 30 days. This maximum period is further limited by paragraph 1, which reflects the principle of proportionality by providing that the scope and duration of the checks may not exceed what is strictly necessary to respond to the serious threat. Experience has shown that since Schengen came into operation the period during which checks were reintroduced has not usually been as long as 30 days, so the limit appears justified in practice.

But it is quite possible, of course, that a serious threat might last more than 30 days. In that case, checks can be maintained for a fresh, renewable, period of 30 days (paragraph 2). The procedure for prolonging them is determined by Article 23.

37.

Article 21


The procedure for reintroducing checks at internal borders provided for by the Schengen Convention must be adapted to make it fully compatible with the Union institutional set-up since, when the Schengen acquis was incorporated in the Union framework, the institutional elements of that acquis were not all adjusted to the Union institutional set-up. When distributing the Schengen acquis over the first and third pillars, i the Council determined a first-pillar legal basis for the crossing of internal borders in Article 62 i of the EC Treaty.


It follows that the Commission, as guardian of the Treaties, must be explicitly involved in the process of temporary reintroduction of checks at internal borders.

The applicant Member State must specify the reasons for the proposed decision, detailing the events that constitute a serious threat to public policy, internal security or public health and, where appropriate, the measures it wishes other Member States to introduce once it has taken the decision to reintroduce checks so that the other Member States can immediately prepare for the measure. The decision of the Schengen Executive Committee of 20 December 1995 (SCH/Com-ex (95) 20, rev.2) already provided for the notification of this information.

The Commission and the other Member States will be consulted on this information in the Council to improve concerted action and trigger the arrangements for mutual cooperation between Member States if need be (such as prohibiting repeat offenders from leaving the territory or enhancing police cooperation). There is also an opportunity to consider what further measures might be taken and in any event to limit the borders at which checks are carried out. The consultation can be used to review proportionality in relation to the event giving rise to the reintroduction of checks at internal borders and the inherent risks. And police and liaison officers can be sent during or after the events that are such as to seriously threaten public order and information can be exchanged so as to target checks properly. Account must be taken here of the Council Resolution on security at European Council meetings and other comparable events (Council document 13915/03 ENFOPOL 92 COMIX 642, 4.11.2003), which highlights the need to involve intelligence services so as to target measures on individuals in respect of whom there are substantial grounds for believing that they intend to enter the Member State with the aim of disrupting public order and security at the event or committing offences relating to the event. The opportunity can also be taken to take stock of experience and see what works and what needs improving.

In view of the above-mentioned consultation and on the basis of the information provided, the Commission will issue an opinion, particularly in order to review proportionality in relation to the event giving rise to the reintroduction of checks at internal borders and the inherent risks.

The consultation shall be compulsory and shall take place at least 15 days before the date of reintroduction of border controls, except in urgent cases where public policy, public health or internal security require an immediate reaction (see Article 22).

38.

Article 22


This Article governs the emergency procedure, when the standard procedure of Article 21 is not appropriate and a simple notification to the Commission and the Member States that checks at internal borders are being reintroduced is provided for, subject to information being provided on the reasons that justify recourse to the emergency procedure.

39.

Article 23


To prolong the exceptional reintroduction of checks at internal borders where the serious threat persists beyond 30 days, the Commission and the other Member States must be consulted. The Commission will issue an opinion on the prolongation.

40.

Article 24


This Article provides for the common activation of the safeguard clause in the event of an exceptionally serious threat to public policy, internal security or public health affecting several Member States, for example in the event of a cross-border terrorist threat. The definition of 'a cross-border terrorist threat' was agreed on in the Article 36 Committee on 23 November 2001 (Council document 14181/1/01, 30 November 2001, ENFOPOL 134 REV 1) as follows:

a) an imminent threat of or the simultaneous or synchronised carrying out of several terrorist attacks in several Member States;

b) a terrorist attack of exceptional gravity where there are serious grounds for believing that the perpetrators or accomplices might travel to other Member States;

c) an imminent threat of a terrorist attack of exceptional gravity in one or more Member States where there are serious grounds for believing that the perpetrators or accomplices might come from other Member States.

This measure is justified by the by the fact that the threat is a cross-border one or that one or more Member States are asking for support for their efforts to face up to an exceptional security risk.

In such a situation, the Council can decide that all Member States are to reintroduce checks immediately at all internal borders or at particular borders of all or several Member States, for example at internal air traffic. The Council will decide to lift these exceptional measures as soon as the exceptionally serious threat has ceased to exist. The European Parliament must be informed of the exceptional measures without delay.

This Article not affect any immediate and concomitant decision taken by a Member State to reintroduce checks at internal borders in an emergency under Article 22.

41.

Article 25


This Article provides that where checks at internal borders are reintroduced, the relevant provisions of Title II of this Regulation apply.

42.

Article 26


As currently provided in the Schengen acquis, the relevant Member State must report on the application of its decision on the reintroduction of checks at internal borders. Given the Union institutional framework, the report must now also go to the Commission and Parliament.

43.

Article 27


This Article provides for an obligation to inform the public in an appropriate manner about the reintroduction of checks, unless the information needs to be kept confidential for security and public policy reasons.

44.

Article 28


This Article allows information supplied in connection with the reintroduction and prolongation of checks to be kept confidential to avoid jeopardising the security of a Member State facing a serious threat to public policy, internal security or public health.

45.

Title IV - Final provisions


Article 29

This Article provides that Annexes I to XII to this Regulation are to be amended in accordance with the committee procedure referred to in Article 30. The reason for proposing the use of a committee procedure is that the Annexes contain measures implementing the general rules on checks at internal borders laid down by Title II of this Regulation.

46.

Article 30


This is a standard Article on committee procedures to be followed for the adoption of measures implementing the Regulation in accordance with Decision 1999/468/EC. The regulatory procedure is provided for as measures of general scope within the meaning of Article 2 of the Decision are involved; Articles 5 and 7 of the Decision apply.

The time-limit under Article 5 i of Decision 1999/468/EC for the Council to give its qualified-majority decision on the Commission's proposal for measures to be adopted where they are not in conformity with the Committee's opinion is set at two months.

47.

Article 31


This Article determines the territorial scope of the Regulation. As provided by Article 138 of the Schengen Convention, which determines the scope of the provisions of the Convention, paragraph 1 provides that the Regulation will not apply to the non-European territories of the French Republic and the Kingdom of the Netherlands.

Paragraph 2 provides that the provisions of this Regulation shall not adversely affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Final Act of the Agreement on the Accession of the Kingdom of Spain to the Schengen Convention.

48.

Article 32


For the sake of transparency and clarity in the law, the Member States are required to notify their national provisions enacted under Article 17(c) and (d). They will be published in the Official Journal of the European Union (C Series) to ensure publicity.

49.

Article 33


This Article provides for a report on the application of Title III (Internal borders) to be produced no later than three years following entry into force. In this report the Commission is to pay particular attention to any difficulties arising from the reintroduction of checks at internal borders and, where appropriate, present proposals aimed at resolving such difficulties.

50.

Article 34


Paragraphs 1 and 2 specify what provisions are repealed and replaced by this Regulation:

- Articles 2 to 8 of the Convention, relating to the crossing of internal borders (Article 2) and external borders (Articles 3 to 8);

- the Common Manual, and the Annexes to it;

- certain decisions of the Schengen Executive Committee: Decision SCH/Com-ex (94)17, rev.4, introducing and applying the Schengen arrangements in airports and aerodromes; and Decision SCH/Com-ex(95)20, rev.2, on the procedure for applying Article 2 i of the Convention implementing the Schengen Agreement;

- Annex 7 to the Common Consular Instructions, relating to the reference amounts determined each year by the national authorities for the purposes of crossing borders, already incorporated in Annex III to this Regulation;

- Regulation (EC) No 790/2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance, since the procedure provided for by Article 30 for the amendment of the Annexes to this Regulation replace the procedures provided for by Articles 1 and 2 of that Regulation.

Paragraph 2 further refers to the concordance table in Annex XIII, which specifies the provisions of this Regulation that replace the provisions of the Convention, the Common Manual and other Schengen decisions that are replaced so that every reference to the old provisions can be read properly under the new Regulation.

51.

Article 35


This is the standard clause on entry into force and direct applicability.

The application of the Regulation is deferred for six months following entry into force, given the scale of the exercise and the need to brief border guards properly and possibly prepare a practical guide.


52.

ANNEX


Provisions of the Common Manual not taken over

Provisions of the Common Manual not taken over // Ground(s)

Point 1.1 of part I

Consequences of authorisation to enterThis paragraph merely reproduces the provisions of Articles 20 and 21 of the Schengen Convention
(SC). Unrelated to the conditions for entry and border crossing.

53.

Point 3 of Part I (including 3.1, 3.2 and 3.3)


Visas needed for entry of foreign nationals into Member States'
territoryThis part merely reproduces provisions of SC
(Arts. 10-11 and 18) and the Common Consular Instructions - CCI (see: part I; point 3 of part V; part VI; Annexes 1, 8, 9, 10, 13) and is redundant.

54.

Point 4.2 of part I


Conditions relating to securityRepeats Article 96
SC

55.

Point 1.3.4 of part II


Right of Union citizens (and others enjoying the Community right of free movement) to waiver of thorough checks apart from exceptional casesRight already conferred by instruments of Community law relating to free movement for Union citizens and members of their families (in particular Directive
2004/38/EC of 24 April 2004, taking over the entire Community acquis in this respect). On the basis of Article 3 of this Regulation, the rights of persons enjoying the Community right of free movement will not be affected. There is therefore no longer any need for this provision.

Point 1.4.7

Specific arrangements relating to refusals of entry in relation to Union citizens and others enjoying the Community right of free movementSee commentary on point
1.3.4, Part II, above.

Points 3.4.1.1, 3.4.1.2 and 3.4.1.3

Definitions of 'maritime traffic', 'passenger' and 'crew' // Considered superfluous.

Points 5.3 to 5.5 of Part II**

Characteristics of visas issued at the borderSuperfluous
provisions:

- Annex 14 has been repealed (point 5.3);

- the charges for this type of visa (point 5.4) and prior consultation (point 5.5.) are governed by the relevant provisions of the CCI.

56.

Point 6.1 of part II


Rules for Union citizens and other persons enjoying rights under Community lawSee commentary on point
1.3.4, Part II, above.

Point 6.3
of part II - Refugees and stateless personsThe visa rules for these categories are governed by Regulation No
539/2001.

The recognition of travel documents has not been harmonised. This part is redundant.

Point 6.9
of part II - Group travel (checks relaxed in certain cases)This provision contradicts the general provisions on checks, and in particular the obligation to stamp them on entry (Article
9).

Point 6.10 - Foreign nationals applying for asylum at the border // Superfluous.

Annexes 4, 5, 5a, 6, 6a, 6b, 6c, 8, 8a, 11, 14a, 14bIdentical to corresponding annexes (or parts) of
CCI

Annexes 7 and 9 - Model visa stickersNo mandatory
status

Annex 12 - Model loose sheets (bearing a visa)Obsolete (replaced by Regulation (EC) No
333/2002).