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Parliamentary questions
6 December 2006
Answer given by Mr Frattini on behalf of the Commission

Article 18 of the EC Treaty stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The respective limitations and conditions are to be found in Directive 2004/38/EC of the 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.

Article 5(1) of the directive provides that without prejudice to the provisions on travel documents applicable to national border controls, Member States must grant EU citizens leave to enter their territory with a valid identity card or passport.

The presentation of a valid identity card or passport is an administrative formality the sole objective of which is to provide the national authorities with proof of a right which the person has by virtue of their status as a citizen of the EU. Stamping of passports, which serves to establish how long a person stayed within the territory of the Member States, is thus not allowed in relation to EU citizens.

In accordance with Article 27 of the directive, free movement of EU citizens can only be restricted on grounds of public policy, public security or public health.

With regard to checks at external borders or at borders between Member States fully applying the Schengen acquis and Member States not fully applying the Schengen acquis, Regulation (EC) No 562/2006 of the 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)(1) stipulates that EU citizens shall undergo only a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents.

Such a minimum check consists of a rapid and straightforward verification, where appropriate by using technical devices and by consulting, in the relevant databases, information exclusively on stolen, misappropriated, lost and invalidated documents, or the validity of the document authorising the legitimate holder to cross the border and the presence of signs of falsification or counterfeiting.

However, on a non-systematic basis, when carrying out those minimum checks, 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 public health.

The consequences of such consultations shall not jeopardise the right of entry of EU citizens into the territory of the Member State concerned as laid down in Directive 2004/38/EC.

Moreover, the Commission adopted on 6 November 2006 a Recommendation establishing a common ‘Practical Handbook for Border Guards (Schengen Handbook)’ to be used by Member States' competent authorities when carrying out the border checks on persons. The Handbook is intended to be a user guide for border guards in respect of the measures and decisions to be taken at the border and will contribute to a harmonised implementation of Community rules on border control by all national authorities competent for carrying out border control tasks.

With regard to separate lanes at border crossing points, Article 9 of Regulation (EC) No 562/2006 provides that Member States shall provide separate lanes at air border crossing points in order to carry out checks on persons and that there should be lanes reserved for EU citizens. Those lanes should be clearly identified. However, EU citizens are entitled to make use also of lanes other than those reserved for them. In any case, they cannot be precluded from using the lanes reserved to them.

As far as checks carried out by airlines are concerned, the Commission has informed Member States in August 2005 that national legislation or administrative practice requesting upon entry a passport only (and not accepting an identity card) is contrary to Community law and that airline companies that are otherwise entitled to carry out identity checks within a commercial framework cannot impose the production of a passport.

(1)OJ L 105, 13.4.2006.

OJ C 329, 30/12/2006
Last updated: 20 December 2006Legal notice