REPORT on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement

7.6.2013 - (COM(2011)0118 – C7‑0070/2011 – 2011/0051(COD)) - ***I

Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Georgios Papanikolaou

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement

(COM(2011)0118 – C7‑0070/2011 – 2011/0051(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2011)0118),

–   having regard to Article 294(2) and Article 77(1) and (2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0070/2011),

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the undertakings given by the Council representative by letter of 19 December 2012 to approve that position, in accordance with Article 294 (4) of the Treaty on the Functioning of the European Union,

–   having regard to Rule 55 and Rule 37 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A7-0206/2013),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment   1

AMENDMENTS BY THE EUROPEAN PARLIAMENT^[1]*

TO THE COMMISSION PROPOSAL

---------------------------------------------------------

REGULATION (EU) No …/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of …

amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), the Convention implementing the Schengen Agreement, Council Regulations (EC) No 1683/95 and (EC) No 539/2001 and Regulations (EC) No 767/2008 (EC) No 810/2009 of the European Parliament and of the Council

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77

▌(2) thereof,

Having regard to the proposal from the European Commission,

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

Acting in accordance with the ordinary legislative procedure[2],

Whereas:

(1)         Union policy in the field of external borders aims for integrated management to ensure a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the Union and a fundamental component of an area of freedom, security and justice. To this end, common rules on standards and procedures for the control of external borders should be established, taking into account the specific and disproportionate pressures faced by some Member States at their external borders. The rules set should be governed by the principle of solidarity between Member States.

(1a)       The free movement of people within the Schengen area has been one of the biggest achievements of European integration. Freedom of movement is a fundamental right, the conditions for the exercise of which are laid down in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) and in Directive 2004/38/EC of the European Parliament and of the Council 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[3].

(1b)       The abolition of internal border controls requires full mutual trust between Member States in their capacity to fully implement the accompanying measures allowing those controls to be lifted.

(2)         Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)[4] entered into force on 13 October 2006.

(3)         After several years of practical application, the need for a number of amendments has emerged, based on the practical experiences of the Member States and of the Commission in applying Regulation (EC) No 562/2006, on the results of Schengen evaluations, on reports and requests submitted by Member States and on developments in primary and secondary Union law, as has the need for clarification and more efficient mapping of critical technical issues.

(4)         The Commission report of 21 September 2009 on the operation of the provisions on stamping of the travel documents of third-country nationals in accordance with Articles 10 and 11 of Regulation (EC) No 562/2006 as well as the Commission report of 13 October 2010 on the application of Title III (Internal Borders) of Regulation (EC) No 562/2006 contain concrete suggestions for technical amendments to Regulation (EC) No 562/2006.

(5)         Recently adopted Union legislative acts, in particular Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)[5] and Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals[6], require certain amendments to Regulation (EC) No 562/2006.

(5a)       Equally, certain provisions of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders[7] ("the Convention implementing the Schengen Agreement") should be amended in order to reflect the changes in Regulation (EC) No 562/2006 and the current legal situation.

(5b)       Pursuant to Case C-241/05 Nicolae Bot v Préfet du Val-de-Marne[8], there is a need to amend the rules dealing with the calculation of the authorised length of short-term stays in the Union. Clear, simple and harmonised rules in all legal acts dealing with this issue would benefit both travellers as well as border and visa authorities. Regulation (EC) No 562/2006 and the Convention implementing the Schengen Agreement, Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas[9] and Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement[10], Regulation (EC) No 767/2008 of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation)[11] and Regulation (EC) No 810/2009, should therefore be amended accordingly.

(5c)       The adoption of Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union[12](Frontex) ("the Agency") improves the integrated management of the external borders and provides a further enhancement of the role of the Agency in line with the objective of the Union to develop a policy with a view to the gradual introduction of the concept of Integrated Border Management.

(6)         In order to align the provisions of Regulation (EC) No 562/2006 with the TFEU, the power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission in respect of the adoption of additional measures governing surveillance as well as amendments to the Annexes to Regulation (EC) No 562/2006. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(7)         Since the objective of this Regulation, namely to provide for technical amendments to the existing rules of Regulation (EC) No 562/2006 and the Convention implementing the Schengen Agreement, as well as Regulations (EC) No 1683/95, (EC) No 539/2001, (EC) No 767/2008 and (EC) No 810/2009, can only be achieved at Union level, the ▌Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as also set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(8)         As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis[13] which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement[14].

(9)         As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis[15] which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[16].

(10)       As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis[17] which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU[18].

(11)       In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(12)       This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, 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[19]; the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

(13)       This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with 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[20]; Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application,

HAVE ADOPTED THIS REGULATION:

Article 1Amendments to

Regulation (EC) No 562/2006

Regulation (EC) No 562/2006 is hereby amended as follows:

(1)         Article 2 is amended as follows:

(a)    in point 1, point (c) is replaced by the following:

"(c)   sea, river and lake ports of the Member States for regular internal ferry connections ▌;";

(b)    point 4 is replaced by the following:

"4.    'regular internal ferry connection' means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States and consisting of the transport of passengers and vehicles according to a published timetable;";

▌

(d)    point 5 is amended as follows:

(i)     the introductory part is replaced by the following:

"5.    'persons enjoying the right of free movement under Union law' means:";

(ii) in point (a), the reference "Article 17(1)" is replaced by the reference "Article 20(1)";

(iii)    in point (b), the word "Community" is replaced by the word "Union";

(g)    in point 6, the reference "Article 17(1)" is replaced by the reference "Article 20(1)";

(ga)  the following point is inserted:

"8a. 'shared border crossing point' means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement;";

(h)    point 15 is replaced by the following:

“15.  'residence permit' means:

(a)    all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals* and residence cards issued in accordance with Directive 2004/38/EC;

(b)    all other documents issued by a Member State to third-country nationals authorising a stay on its territory, that have been the subject of a notification and subsequent publication in accordance with Article 34, with the exception of:

(i)     temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum and

(ii)     visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas**;

____________________

*      OJ L 157, 15.6.2002, p. 1.

**  OJ L 164, 14.7.1995, p. 1.";

(ha) the following point is inserted:

"18a.             'offshore worker' means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States as defined by international maritime law, and who returns regularly by sea or air to the territory of the Member States;";

(2)         in Article 3, point (a) is replaced by the following:

“(a)   the rights of persons enjoying the right of free movement under Union law;”;

(2a)       the following Article is inserted:

"Article 3a

Fundamental Rights

When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union ("the Charter of Fundamental Rights"); relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Geneva Convention"); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.";

(3)         in Article 4, paragraph 2 is replaced by the following:

"2.    By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed:

(a)    for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 34;

(b)    for individuals or groups of persons in the event of an unforeseen emergency situation;

(c)    in accordance with the specific rules set out in Articles 18 and 19 in conjunction with Annexes VI and VII.";

(4)         Article 5 is amended as follows:

(a)    paragraph 1 is amended as follows:

(i)     the introductory part is replaced by the following:

"1.    For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period ▌ , which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:";

(ii)    point (a) is replaced by the following:

"(a)   they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:

(i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;

(ii) it shall have been issued within the previous 10 years;";

(aa)  the following paragraph is inserted:

"1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States.";

(b)    paragraph 4 is amended as follows:

(i)     point (a) is replaced by the following:

"(a)   third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territories of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit;";

(ii)  in point (b), the first and second paragraphs are replaced by the following:

"(b)   third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territories of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)*.

Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto.

____________________

*       OJ L 243, 15.9.2009, p. 1. ";

(4a)  in Article 6(1), the first subparagraph is replaced by the following:

"1.   Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons.";

(5)         Article 7 is amended as follows:

(a)    in paragraph 2, the second, third and fourth subparagraphs are replaced by the following:

"The minimum check referred to in the first subparagraph shall be the rule for persons enjoying the right of free movement under Union law.

However, on a non-systematic basis, when carrying out minimum checks on persons enjoying the right of free movement under Union law, border guards may consult national and European databases in order to ensure that such persons do not represent a genuine, present and sufficiently serious threat to the internal security, public policy, international relations of the Member States or a threat to the public health.

The consequences of such consultations shall not jeopardise the right of entry of persons enjoying the right of free movement under Union law into the territory of the Member State concerned as laid down in Directive 2004/38/EC.";

(d)    in paragraph 5, the first subparagraph is replaced by the following:

“Without prejudice to the second subparagraph, third-country nationals subject to a thorough second line check shall be given written information in a language which they understand or may reasonably be presumed to understand, or in another effective way, on the purpose of, and the procedure for, such a check.";

(e)    paragraph 6 is replaced by the following:

"6. Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive 2004/38/EC.";

(f)     the following paragraph is added:

"8.    Where points (a) or (b) of Article 4(2) apply, Member States may also provide derogations from the rules set out in this Article.";

(6)         Article 9 is amended as follows:

(a)    paragraph 2 is replaced by the following:

"2. (a)  Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign in part A ("EU, EEA, CH") of Annex III. They may also use the lanes indicated by the sign in part B1 ("visa not required") and part B2 ("all passports") of Annex III.

Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign in part B1 ("visa not required") of Annex III to this Regulation. They may also use the lanes indicated by the sign in part B2 ("all passports") of Annex III to this Regulation.

(b)    All other persons shall use the lanes indicated by the sign in part B2 ("all passports") of Annex III.

The indications on the signs referred to in points (a) and (b) may be displayed in such language or languages as each Member State considers appropriate.

The provision of separate lanes indicated by the sign in part B1 ("visa not required") of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs.";

(b)    paragraph 5 is deleted;

(7)         Article 10 is ▌ amended as follows:

(a)    the title is replaced by the following: " Stamping of the travel documents”;

(b)    paragraph 2 is replaced by the following:

“2.    The travel documents of nationals of third countries who are members of the family of a Union citizen to whom Directive 2004/38/EC applies, but who do not present the residence card provided for in that Directive, shall be stamped on entry and exit.

The travel documents of nationals of third countries who are members of the family of nationals of third countries enjoying the right of free movement under Union law, but who do not present the residence card provided for in Directive 2004/38/EC, shall be stamped on entry and exit.";

(c)    paragraph 3 is amended as follows:

(i)     in the first subparagraph, the following points are added:

"(f)    to the travel documents of crews of passengers and goods trains on international connections;

(g)    to the travel documents of nationals of third countries who present a residence card provided for in Directive 2004/38/EC.";

(ii)   the second subparagraph is replaced by the following:

"Exceptionally, at the request of a third-country national, insertion of an entry or exit stamp may be dispensed with if insertion might cause serious difficulties for that person. In that case, entry or exit shall be recorded on a separate sheet indicating that person's name and passport number. That sheet shall be given to the third-country national. The competent authorities of the Member States may keep statistics of such exceptional cases and may provide those statistics to the Commission.";

(8)  Article 11 is amended as follows:

(a)    paragraph 3 is replaced by the following:

"3.    Should the presumption referred to in paragraph 1 not be rebutted, the third-country national may be returned in accordance with Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals* and with national law respecting that Directive.

_______________

*      OJ L 348, 24.12.2008, p. 98.";

(b)    the following paragraph is added:

"4.    The relevant provisions of paragraph 1 and 2 shall apply mutatis mutandis in the absence of an exit stamp.";

(9)         Article 12 is amended as follows:

(a)    paragraph 1 is replaced by the following:

"1.   The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. A person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC";

(b)    paragraph 5 is replaced by the following:

"5.    The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning additional measures governing surveillance.";

(10)  in Article 13, paragraph 5 is replaced by the following:

"5.    Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons who were refused entry and the type of border (land, air or sea) at which they were refused entry and submit them yearly to the Commission (Eurostat) in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection.*

____________________

* OJ L 199, 31.7.2007, p. 23.";

(11)       in Article 15(1), the third subparagraph is replaced by the following:

"Member States shall ensure that the border guards are specialised and properly trained professionals, taking into account common core curricula for border guards established and developed by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States established by Council Regulation (EC) No 2007/2004. Training curricula shall include specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States, with the support of the Agency, shall encourage border guards to learn the languages ▌necessary for the carrying-out of their tasks.";

(12)       in Article 18, the second paragraph is replaced by the following:

"Those specific rules may contain derogations from Articles 4 and 5 and Articles 7 to 13.";

(13)       in Article 19, paragraph 1 is amended as follows:

(a)     ▌the following points are added to the first subparagraph:

"(g)   rescue services, police and fire brigades and border guards;

(h)    offshore workers.";

(b)    the second subparagraph is replaced by the following:

"Those specific rules may contain derogations from Articles 4 and 5 and Article 7 to 13.";

(14)       in Article 21, point (d) is replaced by the following:

“(d) the possibility for a Member State to provide by law for an obligation on third-country nationals to report their presence on its territory pursuant to the provisions of Article 22 of the Schengen Convention.”;

(15)       Article 32 is replaced by the following:

"Article 32

Amendments to the Annexes

The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning amendments to Annexes III, IV and VIII.";

(16)       Article 33 is replaced by the following:

"Article 33Exercise of the delegation

1.      The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.      The ▌ power to adopt delegated acts referred to in Articles 12(5) and 32 shall be conferred on the Commission for an indeterminate period of time from …^[21]*.

3.      The delegation of powers referred to in Articles 12(5) and 32 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.      As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.      A delegated act adopted pursuant to Articles 12(5) and 32 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.";

(17)       in Article 34, paragraph 1 is amended as follows:

(a)    point (a) is replaced by the following:

"(a)    the list of residence permits, distinguishing between those covered by point (a) of point 15 of Article 2 and those covered by point (b) of point 15 of Article 2 and accompanied by a specimen for permits covered by point (b) of point 15 of Article 2. Residence cards issued in accordance with Directive 2004/38/EC shall be specifically highlighted as such and specimens shall be provided for those residence cards which have not been issued in accordance with the uniform format laid down by Regulation (EC) No 1030/2002.";

(b)    the following points are added:

"(ea) the exceptions to the rules regarding the crossing of the external borders referred to in point (a) of Article 4(2);

(eb)  the statistics referred to in Article 10(3).";

(18)  in Article 37, the first paragraph is replaced by the following:

"The Member States shall notify the Commission of national provisions relating to Article 21(c) and (d), the penalties as referred to in Article 4(3) and the bilateral agreements authorised by this Regulation. Subsequent changes to those provisions shall be notified within five working days.";

(19)       Annexes III, IV, VI, VII and VIII to Regulation (EC) No 562/2006 are amended in accordance with Annex I to this Regulation.

Article 2Amendments to the Convention implementing the Schengen Agreement

The Convention implementing the Schengen Agreement ▌ is hereby amended as follows:

(-1)        in Article 18(1), the words "three months" are replaced by the words "90 days";

(-1a)      Article 20 is amended as follows:

(a)    in paragraph 1, the phrase "three months during the six months following the date of first entry" is replaced by the phrase "90 days in any 180-day period";

(b      in paragraph 2, the words "three months" are replaced by the words "90 days";

(1)         Article 21 is amended as follows:

(a)    in paragraph 1, the phrase "three months in any six-month" is replaced by the phrase"90 days in any 180-day";

(b)    paragraph 3 is deleted;

(2)         Article 22 is replaced by the following:

“Article 22

Aliens who have legally entered the territory of one of the Contracting Parties may be obliged to report, in accordance with the conditions laid down by each Contracting Party, to the competent authorities of the Contracting Party whose territory they enter. Such aliens shall report either on entry or within three working days of entry, at the discretion of the Contracting Party whose territory they enter.”;

(3)         Article 136 is deleted.

Article 2a

Amendment to Regulation (EC) No 1683/95

Article 5 of Regulation (EC) No 1683/95 is replaced by the following:

"Article 5

For the purposes of this Regulation, 'visa' means a visa as defined in Article 2(2)(a) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)*.

_________________

*      OJ L 243, 15.9.2009, p. 1.".

Article 2bAmendments to Regulation (EC) No 539/2001

Regulation (EC) No 539/2001 is hereby amended as follows:

(1)         in Article 1(2), the first subparagraph is replaced by the following:

"Nationals of third countries on the list in Annex II shall be exempt from the requirement set out in paragraph 1 for stays of no more than 90 days in any 180-day period.";

(2)         Article 2 is replaced by the following:

"Article 2

For the purposes of this Regulation, 'visa' means a visa as defined in Article 2(2)(a) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)*.

_________________

*      OJ L 243, 15.9.2009, p. 1.".Article 2cAmendment to Regulation (EC) No 767/2008

In Article 12(2)(a) of Regulation (EC) No 767/2008, point (iv) is replaced by the following:

"(iv) has already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity;".

Article 2dAmendments to Regulation (EC) No 810/2009

Regulation (EC) No 810/2009 is hereby amended as follows:

(1)    in Article 1, paragraph 1 is replaced by the following:

"1.   This Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days in any 180-day period.";

(2)         in Article 2(2), point (a) is replaced by the following:

"(a)  transit through or an intended stay on the territory of the Member States of a duration of no more than 90 days in any 180-day period;";

(3)         in Article 25(1), point (b) is replaced by the following:

"(b)  when for reasons deemed justified by the consulate, a new visa is issued for a stay during the same 180-day period to an applicant who, over this 180-day period, has already used a uniform visa or a visa with limited territorial validity allowing for a stay of 90 days.";

(4)         in Article 32(1)(a), point (iv) is replaced by the following:

"(iv) has already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity;";

(5)         Annexes VI, VII and XI to Regulation (EC) No 810/2009 are amended in accordance with Annex II to this Regulation.

Article 3Entry into force

This Regulation shall enter into force on …^[22]* .

Article 1(4)(a)(i), Article 1(4)(aa), Article 2(-1) and (-1a), Article 2(1)(a), Articles 2a, 2b, 2c and 2d, point (3) of Annex I, and Annex II shall apply from …^[23]**.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at …,

For the European Parliament                      For the Council

The President                                                The President

ANNEX I

The Annexes to Regulation (EC) No 562/2006 are hereby amended as follows:

(1)         Annex III is amended as follows:

(a)    Part B is replaced by the following:

"PART B1: 'visa not required';

PART B2: 'all passports'.

";

(b)  in Part C, the following signs are inserted between the signs "EU, EEA, CH" and the signs "ALL PASSPORTS":

"

 

 

 

";

(2)  in Annex IV, point 3, the first paragraph is replaced by the following:

"3.    On the entry and exit of third-country nationals subject to the visa obligation, the stamp shall, as a general rule, be affixed on the page facing the one on which the visa is affixed.";

(3)    in Annex V, part B, in the Standard form for refusal of entry at the border, letter (F) "" is replaced by the following:

" (F) has already stayed for 90 days in the preceding 180-day period on the territory of the Member States of the European Union";

(4)    Annex VI is amended as follows:

(a)    point 1 is amended as follows:

(i)     in point 1.1., the following point is added:

"1.1.4. Shared border crossing points

1.1.4.1.         Member States may conclude or maintain bilateral agreements with neighbouring third countries concerning the establishment of shared border crossing points, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law on the territory of the other party. Shared border crossing points may be located either on the territory of a Member State territory or on the territory of a third country.

1.1.4.2.         Shared border crossing points located on Member State territory: Bilateral agreements establishing shared border crossing points located on Member State territory shall contain an authorisation for third-country border guards to exercise their tasks in the Member State, respecting the following principles:

(a)    International protection: A third-country national asking for international protection on Member State territory shall be given access to relevant Member State procedures in accordance with the Union asylum acquis.

(b)    Arrest of a person or seizure of property: If third-country border guards become aware of facts justifying the arrest or placing under protection of a person or seizure of property, they shall ▌ inform Member State authorities of those facts and Member State authorities shall ensure an appropriate follow-up in accordance with national, Union and international law, independently of the nationality of the concerned person.

▌

(c)    Persons enjoying the right of free movement under Union law entering Union territory: Third-country border guards shall not prevent persons enjoying the right of free movement under Union law from entering Union territory. If there are reasons justifying refusal of exit from the third country concerned, third-country border guards shall inform Member State authorities of those reasons and Member State authorities shall ensure an appropriate follow-up in accordance with national, Union and international law.

1.1.4.3.  Shared border crossing points located on third-country territory: Bilateral agreements establishing shared border crossing points located on third-country territory shall contain an authorisation for Member State border guards to perform their tasks in the third country. For the purpose of this Regulation, any check carried out by Member State border guards in a shared border crossing point located on the territory of a third country shall be deemed to be carried out on the territory of the Member State concerned. Member State border guards shall exercise their tasks in accordance with Regulation (EC) No 562/2006 and respecting the following principles:

(a)    International protection: A third-country national who has passed exit control by third-country border guards and subsequently asks Member State border guards present in the third country for international protection, shall be given access to relevant Member State procedures in accordance with Union asylum acquis. Third-country authorities shall accept the transfer of the person concerned into Member State territory.

(b)    Arrest of a person or seizure of property: If Member State border guards become aware of facts justifying the arrest or placing under protection of a person or seizure of property, they shall act in accordance with ▌ national, Union and international law. Third-country authorities shall accept a transfer of the person or object concerned into Member State territory.

(c)    Access to IT systems: Member State border guards shall be able to use information systems processing personal data in accordance with Article 7. Member States shall be allowed to establish the technical and organisational security measures required by Union law to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, including access by third-country authorities.

1.1.4.4.     Before concluding or amending any bilateral agreement on shared border crossing points with a neighbouring third country, the Member State concerned shall consult the Commission as to the compatibility of the agreement with Union law. Pre-existing bilateral agreements shall be notified to the Commission by …[24]*.

If the Commission considers the agreement to be incompatible with Union law, it shall notify the Member State concerned. The Member State shall take all appropriate steps to amend the agreement within a reasonable period in such a way as to eliminate the incompatibilities established. ▌";

(ii)    in point 1.2., points 1.2.1. and 1.2.2. are replaced by the following:

"1.2.1.      Checks shall be carried out both on train passengers and on railway staff on trains crossing external borders, including those on goods trains or empty trains. Member States may conclude bilateral or multilateral agreements on how to conduct those checks respecting the principles set out in point 1.1.4. Those checks shall be carried out in one of the following ways:

–       in the first station of arrival or last station of departure on the territory of a Member State,

–       on board the train, during transit between the last station of departure in a third country and the first station of arrival on the territory of a Member State or vice versa,

–       in the last station of departure or the first station of arrival on the territory of a third country.

1.2.2. In addition, in order to facilitate rail traffic flows of high-speed passenger trains, the Member States on the itinerary of these trains from third countries may also decide, by common agreement with third countries concerned respecting the principles set out in point 1.1.4., to carry out entry checks on persons on trains from third countries in either one of the following ways:

–       in the stations in a third country where persons board the train,

–       in the stations where persons disembark within the territory of the Member States,

–       on board the train during transit between stations on the territory of a third country and stations on the territory of the Member States, provided that the persons stay on board the train.";

(b)    ▌point 3.1. is replaced by the following:

"3.1 General checking procedures on maritime traffic

3.1.1. Checks on ships shall be carried out at the port of arrival or departure, or in an area set aside for that purpose, located in the immediate vicinity of the vessel or on board ship in the territorial waters as defined by the United Nations Convention on the Law of the Sea. Member States may conclude ▌agreements according to which checks may also be carried out during crossings or, upon the ship's arrival or departure, on the territory of a third country, respecting the principles set out in point 1.1.4.

3.1.2.  The master, the ship's agent or some other person duly authorised by the master or authenticated in a manner acceptable to the public authority concerned (in both cases hereinafter referred to as ‘the master’), shall draw up a list of the crew and any passengers containing the information required in the forms 5 (crew list) and 6 (passenger list) of the Convention on Facilitation of International Maritime Traffic (FAL Convention) ▌ as well as, where applicable, the visa or residence permit numbers:

–       at the latest twenty-four hours before arriving in the port, or

–       at the latest at the time the ship leaves the previous port, if the voyage time is less than twenty-four hours, or

–       if the port of call is not known or it is changed during the voyage, as soon as this information is available.

The master shall communicate the list(s) to the ▌ border guards or, if national law so provides, to other relevant authorities which shall forward the list(s) without delay to the border guards ▌.

3.1.3.  A confirmation of receipt (signed copy of the list(s) or an electronic receipt confirmation) shall be returned to the master by the border guards or by the authorities referred to in point 3.1.2., who shall produce it on request when the ship is in port.

3.1.4.  The master shall promptly report to the competent authority any changes to the composition of the crew or the number of passengers.

In addition, the master shall notify the competent authorities promptly, and within the time-limit set out in point 3.1.2., of the presence on board of stowaways. Stowaways, however, remain under the responsibility of the master.

By way of derogation from Articles 4 and 7, no systematic border checks shall be carried out on persons staying aboard. Nevertheless a search of the ship and ▌checks on the persons staying aboard shall be carried out by border guards only when this is justified on the basis of an assessment of the risks related to internal security and illegal immigration.

3.1.5.  The master shall notify the competent authority of the ship's departure in due time and in accordance with the rules in force in the port concerned.";

(c)    point 3.2. is amended as follows:

(i)     point 3.2.1. is replaced by the following:

"3.2.1.    The cruise ship's master shall transmit to the competent authority the itinerary and the programme of the cruise, as soon as they have been established and no later than within the time-limit set out in point 3.1.2.";

(ii)    in point 3.2.2., the second paragraph is replaced by the following:

"Nevertheless, ▌ checks shall be carried out on the crew and passengers of those ships only when this is justified on the basis of an assessment of the risks related to internal security and illegal immigration.";

(iii)    in points 3.2.3.(a) and 3.2.3.(b), the reference "point 3.2.4" is      replaced by the reference "point 3.1.2.";

(iv)   in point 3.2.3.(e), the second subparagraph is replaced by the following:

"Nevertheless, ▌ checks shall be carried out on the crew and passengers of those ships only when this is justified on the basis of an assessment of the risks related to internal security and illegal immigration.";

(v)  point 3.2.4. is deleted;

(vi)   in point 3.2.9., the second paragraph is deleted;

(vii)   in point 3.2.10., the following point is added:

"(i)    point 3.1.2. (obligation to submit passenger and crew lists) does not apply. If a list of the persons on board has to be drawn up in accordance with Council Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger ships operating to or from ports of the Member States of the Community*, a copy of that list shall be transmitted not later than thirty minutes after departure from a third-country port by the master to the competent authority of the port of arrival on the territory of the Member States.

____________________

*       OJ L 188, 2.7.1998, p. 35.";

(viii)  the following point is inserted:

"3.2.11.  Where a ferry coming from a third country with more than one stop within the territory of the Member States takes passengers on board only for the remaining leg within that territory, those passengers shall be subject to an exit check at the port of departure and an entry check at the port of arrival.

Checks on persons who, during those stop-overs, are already on board the ferry and have not boarded in the territory of the Member States shall be carried out at the port of arrival. The reverse procedure shall apply where the country of destination is a third country.";

(ix)   the following titled point is added:

"Cargo connections between Member States

3.2.12.   By way of derogation from Article 7, no border checks shall be carried out on cargo connections between the same two or more ports situated on the territory of the Member States, not calling at any ports outside the territory of the Member States and consisting of the transport of goods.

Nevertheless, checks shall be carried out on the crew and passengers of those ships only when they are justified on the basis of an assessment of the risks relating to internal security and illegal immigration.";

(5)  Annex VII is amended as follows:

(a)    in point 3, points 3.1. and 3.2. are replaced by the following:

"3.1           By way of derogation from Articles 4 and 7, Member States may authorise seamen holding a seafarer's identity document issued in accordance with the International Labour Organization (ILO) Seafarers' Identity Documents Convention No 108 (1958) or No 185 (2003), the Convention on Facilitation of International Maritime Traffic (FAL Convention) and the relevant national law, to enter ▌the territory of the Member States by going ashore to stay in the area of the port where their ships call or in the adjacent municipalities, or exit the territory of the Member States by returning to their ships, without presenting themselves at a border crossing point, on condition that they appear on the crew list, which has previously been submitted for checking by the competent authorities, of the ship to which they belong.

However, on the basis of an assessment of the risks of internal security and illegal immigration, seamen shall be subject to a check in accordance with Article 7 by the border guards before they go ashore.";

(b)    in point 6, the following points are inserted:

"6.4. Member States shall nominate national contact points for consultation on minors and inform the Commission thereof. A list of these national contact points shall be made available to the Member States by the Commission.

6.5.  Where there is doubt as to any of the circumstances set out in points 6.1. to 6.3., border guards shall make use of the list of national contact points for consultation on minors.";

(c)    the following points are added:

"7.    Rescue services, police ▌, fire brigades and border guards

The arrangements for the entry and exit of members of rescue services, police ▌, fire brigades acting in emergency situations as well as border guards crossing the border in exercise of their professional tasks shall be laid down by national law ▌. Member States may conclude bilateral agreements with third countries on the entry and exit of those categories of persons. These arrangements and bilateral agreements may provide for derogations from Articles 4, 5 and 7.

8.     Offshore workers

By way of derogation from Articles 4 and 7, offshore workers as defined in Article 2, point 18a who regularly return by sea or air to the territory of the Member States without having stayed on the territory of a third country shall not be systematically checked.

Nevertheless, an assessment of the risks of illegal immigration, in particular where the coastline of a third country is located in the immediate vicinity of an offshore site, shall be taken into account in order to determine the frequency of the checks to be carried out.";

(6)         in Annex VIII, the standard form is amended as follows:

(a)    the words "entry stamp" are replaced by the words "entry or exit stamp";

(b)    the word "entered" is replaced by the words "entered or left".

ANNEX II

Annexes to Regulation (EC) No 810/2009 are hereby amended as follows:

(1)         in Annex VI, in the "Standard form for notifying and motivating refusal, annulment or revocation of a visa", point 4 is replaced by the following:

"4.    you have already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity";

(2)         in Annex VII, point 4, the fourth paragraph is replaced by the following:

"When a visa is valid for more than six months, the duration of stays is 90 days in any 180-day period.";

(3)         in Annex XI, Article 5(2) is replaced by the following:

"2.   The visa issued shall be a uniform, multiple-entry visa authorising a stay of not more than 90 days for the duration of the Olympic and/or Paralympic Games.".

• [1] ^*         Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.
• [2]           Position of the European Parliament of ... (not yet published in the Official Journal) and decision of the Council of ...
• [3]           OJ L 158, 30.4.2004, p. 77.
• [4]           OJ L 105, 13.4.2006, p. 1.
• [5]           OJ L 243, 15.9.2009, p. 1.
• [6]           OJ L 348, 24.12.2008, p. 98.
• [7]           OJ L 239, 22.9.2000, p. 19.
• [8]           [2006] ECR I-9627.
• [9]           OJ L 164, 14.7.1995, p. 1.
• [10]           OJ L 81, 21.3.2001, p. 1.
• [11]          OJ L 218, 13.8.2008, p. 60.
• [12]          OJ L 304, 22.11.2011, p. 1.
• [13]          OJ L 176, 10.7.1999, p. 36.
• [14]          OJ L 176, 10.7.1999, p. 31.
• [15]          OJ L 53, 27.2.2008, p. 52.
• [16]          OJ L 53, 27.2.2008, p. 1.
• [17]          OJ L 160, 18.6.2011, p.21.
• [18]          OJ L 160, 18.6.2011, p. 19.
• [19]          OJ L 131, 1.6.2000, p. 43.
• [20]          OJ L 64, 7.3.2002, p. 20.
• [21] ^*       OJ: please insert the date of entry into force of this Regulation.
• [22] ^*         OJ: please, insert the date: 20 days after the date of the publication of this Regulation in the OJ.
• [23] ^**        OJ: please, insert the date: 90 days after the date of entry into force of this Regulation.
• [24] ^*         OJ: please insert the following date: 6 months after the entry into force of this Regulation.

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Juan Fernando López Aguilar

Chair

Committee on Civil Liberties, Justice and Home Affairs

BRUSSELS

Subject:           Opinion on the legal basis of the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement (COM(2011)0118 – C7-0070/2011 – 2011/0051(COD))

Dear Mr Chair,

By letter of 21 May 2012 you asked the Committee on Legal Affairs, pursuant to Rule 37 of the Rules of Procedure, to give its opinion on the possibility of using Article 77(2) TFEU only as the legal basis for the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement[1].

The proposal was presented by the Commission on the basis of Article 77(1) and (2) TFEU and was accordingly submitted to Parliament under the ordinary legislative procedure. You have informed the Legal Affairs Committee that, during the negotiations with Council which have started after an orientation vote in LIBE on 27 March 2012, the proposal has been put forward to use Article 77(2) TFEU as the sole legal basis.

By a note dated 14 June 2012, Parliament's Legal Service provided an analysis of the issue and came to the conclusion that the deletion of Article 77(1) TFEU was justified.

Background

I. The proposal

The proposal contains a number of amendments to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), based on experience in the course of the first years' application of that regulation.

The main proposed amendments relate to issues of definitions (e.g. the method of calculating "stays not exceeding three months per six-month period"), clarification concerning the required period of validity of certain travel documents, measures to speed up border control, border guard training, rescue services and checks within the territory, delegated acts, and reporting obligations. The proposal also sets up a legal framework for joint border crossings.

II. The legal bases in question

1. Legal basis of the proposal

The proposal is based on Article 77(1) and (2) TFEU, which read as follows:

"1. The Union shall develop a policy with a view to:

(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;

(b)carrying out checks on persons and efficient monitoring of the crossing of external borders;

(c) the gradual introduction of an integrated management system for external borders.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:

(a) the common policy on visas and other short-stay residence permits;

(b) the checks to which persons crossing external borders are subject;

(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

(d) any measure necessary for the gradual establishment of an integrated management system for external borders;

(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders."

2. Proposed change of the legal basis

LIBE has requested the opinion of the Legal Affairs Committee on the possibility of using only Article 77(2) TFEU as legal basis, referring to a proposal of the Council during the first trilogue and explaining that "the Council would like only Article 77(2) TFEU to be mentioned, as paragraph 1 only refers to the objectives but paragraph 2 allows for measures to be adopted."

III. Analysis

Certain principles emerge from the case law of the Court as regards the choice of legal basis. First, in view of the consequences of the legal basis in terms of substantive competence and procedure, the choice of the correct legal basis is of constitutional importance[2]. Secondly, under Article 13(2) TEU, each institution is to act within the limits of the powers conferred upon it by the Treaty[3]. Thirdly, according to the case-law of the Court of Justice, "the choice of legal basis for a Community measure must rest on obective factors amenable to judicial review, including in particular the aim and the content of the measure"[4].

The objective of the regulation in question is to provide for technical amendments to the existing rules of the Schengen Borders Code (cf. recital 7). The amended Regulation No (EC) 562/2006, according to its Article 1 "provides for the absence of border control of persons crossing the internal borders between the Member States of the European Union. It establishes rules governing border control of persons crossing the external borders of the Member States of the European Union."

The objective thus matches Article 77(1) TFEU, according to which the Union shall develop a policy with a view to ensuring the absence of any controls on persons when crossing internal border, to carrying out checks on persons and efficient monitoring of the crossing of external borders, and to the gradual introduction of an integrated management system for external borders.

However, while Article 77(1) TFEU provides only that the EU is to develop a policy, Article 77(2) TEFU empowers the Parliament and the Council to adopt measures, for the purposes of the development of a policy set out in the first paragraph, in accordance with the ordinary legislative procedure, and enumerates the specific tasks and areas for which measures shall be adopted. Paragraph 2 therefore clearly confers powers on the institutions in the sense of the jurisdiction of the ECJ, and qualifies as a potential legal basis.

It remains to be defined whether the whole of Article 77(2) TFEU is needed to constitute a legal basis for the proposal in question.

The proposal in question contains amendments to the definitions (Article 2 of the amended regulation), the scope (Article 3), to the rules on crossing of external borders (Article 4) and entry conditions for third country-nationals, including amendments (Article 5), border checks on persons at external borders (Article 7), separate lanes (Article 9), stamping of travel documents of third-country nationals (Article 10), the presumption as regards fulfilment of conditions of duration of stay for third country-nationals (Article 11), border surveillance (Article 12), refusal of entry (Article 13), implementation of border controls (Article 15), specific rules for border checks (Articles 18 and 19), checks within the territory where border control at internal borders has been abolished (Article 21), as well as amendments as regards the Annexes and the committee assisting with the adoption of implementing acts (Articles 32 and 33), and notifications (Articles 34 and 35).

These amendments all appear to concern matters mentioned in paragraph 2 of Article 77: common policy on visas and other short-stay residence permits 5 (point a), checks on persons at external borders (point b), conditions of travelling for third country nationals (point c), measures necessary for the gradual establishment of an integrated management system of external borders (point d), and the absence of controls on persons at internal borders (point e).

According to information received from LIBE, the text pre-negotiated with the Council contains a number of additional amendments relating to the calculation of the short-stay visas provided for in the Convention implementing the Schengen Agreement and other visa-related acts. This confirms the need to have recourse to the whole of paragraph 2, including in particular point (a).

The committee considered the above question at its meeting of 19 June 2012. At this meeting, it accordingly decided, by unanimity[5], to recommend that the appropriate legal basis for a regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement, should be Article 77(2) TFEU, and that it is unnecessary to include Article 77(1) TFEU.

Yours sincerely,

Klaus-Heiner Lehne

• [1]  OJ L 105, 13.4.2006, p. 1.
• [2]  Opinion 2/00 Carthagna Protocol [2001] E.C.R. I-9713, para. 5; Case C-370/07 Commission v. Council [2009] E.C.R. I-8917, paras 46-49; Opinion 1/08, General Agreement on Trade in Services [2009] ECR I-11129, para. 110.
• [3]  Case C-403/05 Parliament v. Commission [2007] E.C.R. I-9045, para. 49, and the case-law cited therein.
• [4]  See most recently Case C-411/06 Commission v Parliament and Council [2009] E.C.R. I-7585.
• [5]  The following were present for the final vote: Raffaele Baldassarre (Vice-Chair), Luigi Berlinguer, Sebastian Valentin Bodu (Vice-Chair), Piotr Borys, Cristian Silviu Buşoi, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Klaus-Heiner Lehne (Chair), Eva Lichtenberger, Antonio Masip Hidalgo, Alajos Mészáros, Evelyn Regner (Vice-Chair), Dagmar Roth-Behrendt, Francesco Enrico Speroni, Keith Taylor, Alexandra Thein, Patrice Tirolien (pursuant to Rule 187(2)), Axel Voss (rapporteur), Cecilia Wikström, Tadeusz Zwiefka.

EXPLANATORY STATEMENT

Introduction

The creation of the Schengen area in the late 1980s was one of Europe's greatest achievements. The adoption of the Schengen Agreement on 14 June 1985 lead to the abolishment of systematic border controls at the internal borders of the countries participating in the Schengen area and guaranteed the free movement of persons in this area. Over those 25 years, the contractual and legal framework that the European Schengen area has become, resulted in what we now proudly call the Schengen acquis. Schengen area, initially counted 5 members, now is comprised of 25 member countries with Bulgaria and Romania soon to be integrated.

Regulation 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) is an important milestone in this legislative effort to promote and enhance the Schengen acquis. It applies to any person crossing the internal or external borders of the European Union laying down standards for checks at border crossing points of the Schengen area. Its legal framework focuses on the protection of the interests of the Union and ensures the free movement of EU citizens and other persons enjoying the same right, but at the same time it protects the rights of individuals and the rights of particular vulnerable groups of persons that do not enjoy the privileges of the right of free movement.

The main purpose of this Regulation is to modify the existing legislation on border checks carried out on persons and enhance the integrated border management policy by improving the rules on crossing external borders.

Scope of the Commission proposal

Coming in a very crucial and historical for EU timing, the Commission proposal aims to make the Schengen Border Code a more clear and comprehensive mechanism.

Being primarily technical in nature, it concerns the updating of the rules and legal developments that have taken place since the establishment of Regulation 562/2006 and since the taking into force of the Lisbon Treaty.

It also takes under consideration practical experiences of the Member States in the application of the Schengen Borders Code.

The Commission proposal contains finally closely related modifications to the Convention implementing the Schengen Agreement of 14 June 1985.

Rapporteur's position

Taking into account the proposal by the European Commission and the recent developments both in legal and practical terms of the Schengen acquis, the rapporteur agrees with the Commission on the need to amend the existing Schengen Border Code. It is vital to maintain the notion that the removal of controls at the internal borders between Members States goes hand in hand with the need of effective controls, deeper cooperation and mutual trust at the external borders of the Schengen area. In particular this period, during which urgent developments in EU externals borders have taken place (i.e. radical political changes in North Africa) that affect deeply the migration flows directed towards the EU.

In this context, the rapporteur presents amendments that ameliorate the existing frame and which are mainly guided by two principles: First, by enhancing the rules that facilitate, simplify and further develop the free movement within the European Schengen area and secondly, by supporting a rigorous framework for control and security at the external borders of the territory of the Member States.

The rapporteur further agrees that it is important for the strengthening of the Schengen acquis that bilateral agreements are concluded between Member States and third countries for common crossing points. Such agreements should be compatible with European law and values. As seen in existing examples of agreements such as the ones concluded between Ukraine and Poland or Hungary and Croatia, these agreements can act as tools enhancing the protection and border checks of persons attempting to cross at external border crossing points.

The strengthening of the external borders will create legal certainty, it will strengthen the solidarity amongst the Member States and it will provide further economic development. In any case it should be noted that these proposals shall take into great consideration the protection of individual rights of all persons entering or attempting to enter the Schengen area by using the long standing political and legal tradition of the European Union. In addition, the rapporteur notes, that when it has been shown that acts or omissions by a third country have caused disturbances to the external borders of the Schengen area, Member States, in the conduct of border surveillance, should be concerned and act under Article 215 of TFEU.

Whilst drafting the amendments to the present proposal, apart from the newly established Lisbon Treaty and the EU legislation on the protection of human rights, the rapporteur took also into consideration recently adopted European legislation such as the newly adopted Visas Code, the Return Directive and the recent amendments to the regulation of the European Parliament and of the Council amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) that offers new fields of action in order to improve the integrated management of the Union’s external borders.

Thus, the current proposal, even though it is more technical in nature, is an added value to the evolution of the Schengen acquis. It offers immediate benefits while facilitates and evolves border controls and develops the trust and solidarity in the Schengen area. The message that it conveys is crystal clear; despite the difficult period the European Union faces, it remains committed to its integration process and faithful to its values that guarantees peace, security and prosperity in the continent. Convinced that common challenges can only be tackled with shared goals and visions can only be achieved through cooperation and mutual solidarity.

PROCEDURE

Title	Amendment of Schengen border code and Convention implementing the Schengen Agreement
References	COM(2011)0118 – C7-0070/2011 – 2011/0051(COD)
Date submitted to Parliament	10.3.2011
Committee responsible        Date announced in plenary	LIBE 24.3.2011
Committee(s) asked for opinion(s)        Date announced in plenary	AFET 24.3.2011	DEVE 24.3.2011
Not delivering opinions        Date of decision	AFET 22.3.2011	DEVE 22.3.2011
Rapporteur(s)        Date appointed	Georgios Papanikolaou 25.5.2011
Legal basis disputed        Date of JURI opinion	JURI 19.6.2012
Discussed in committee	31.8.2011	26.1.2012	28.2.2012	27.3.2012
	6.6.2013
Date adopted	6.6.2013
Result of final vote	+: –: 0:	41 2 1
Members present for the final vote	Jan Philipp Albrecht, Emine Bozkurt, Arkadiusz Tomasz Bratkowski, Philip Claeys, Carlos Coelho, Ioan Enciu, Frank Engel, Cornelia Ernst, Kinga Gál, Kinga Göncz, Sylvie Guillaume, Sophia in ‘t Veld, Lívia Járóka, Teresa Jiménez-Becerril Barrio, Juan Fernando López Aguilar, Baroness Sarah Ludford, Monica Luisa Macovei, Svetoslav Hristov Malinov, Véronique Mathieu Houillon, Nuno Melo, Roberta Metsola, Antigoni Papadopoulou, Georgios Papanikolaou, Jacek Protasiewicz, Carmen Romero López, Birgit Sippel, Csaba Sógor, Rui Tavares, Nils Torvalds, Wim van de Camp, Axel Voss, Josef Weidenholzer, Cecilia Wikström, Tatjana Ždanoka, Auke Zijlstra
Substitute(s) present for the final vote	Dimitrios Droutsas, Mariya Gabriel, Evelyne Gebhardt, Stanimir Ilchev, Franziska Keller, Jean Lambert, Jan Mulder
Substitute(s) under Rule 187(2) present for the final vote	Jens Nilsson, Sabine Verheyen
Date tabled	7.6.2013