Legal provisions of COM(2021)891 - Amendment of Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders - Main contents

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dossier	COM(2021)891 - Amendment of Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders.
document	COM(2021)891
date	June 13, 2024

Article 1

Regulation (EU) 2016/399 is amended as follows:

(1)

Article 2 is amended as follows:

(a)

point 12 is replaced by the following:

‘12.

“border surveillance” means the surveillance of borders between border crossing points and the surveillance of border crossing points outside fixed opening hours, including preventative measures, to prevent or detect unauthorised border crossings or the circumvention of border checks, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally;’

;

(b)

the following points are added:

‘27.

“large-scale public health emergency” means a public health emergency, that is recognised at Union level by the Commission, taking into account information from competent national authorities, where a serious cross-border threat to health could have large-scale repercussions on the exercise of the right to free movement.

28.	“essential travel” means travel by a person who is exempted from restrictions on entry pursuant to Article 21a(4) or (5), in connection with an essential function or need, taking into account any applicable international obligations of the Union and of the Member States;

29.	“non-essential travel” means travel other than essential travel;

30.	“transport hubs” means airports, sea or river ports, train or bus stations and freight terminals.’

;

(2)	in Article 5, the following subparagraph is added to paragraph 3: ‘Member States may, where a large number of migrants attempt to cross their external borders in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order.’ ;

(3)

in Article 5, the following paragraph is added:

‘4. Member States may, in particular in a situation of instrumentalisation of migrants as referred to in Article 1(4), point (b) first sentence of Regulation (EU) 2024/1359 of the European Parliament and of the Council (*1), temporarily close, or limit the opening hours of, specific border crossing points as notified pursuant to paragraph 1, second subparagraph of this Article, where the circumstances so require.

Any measures pursuant to the first subparagraph of this paragraph and paragraph 3, second subparagraph of this Article, shall be implemented in a manner that is proportionate and that takes full account of the rights of:

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

(b)	third-country nationals who are long-term residents under Council Directive 2003/109/EC (*2), persons deriving their right to reside from other instruments of Union or national law or who hold national long-stay visas, as well as their respective family members; and

(c)	third-country nationals seeking international protection.

(*1) Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (OJ L, 2024/1359, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1359/oj)."

(*2) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ L 16, 23.1.2004, p. 44).’;"

(4)

Article 13 is replaced by the following:

‘Article 13

Border surveillance

1. The main purpose of border surveillance shall be to prevent or detect unauthorised border crossings, to contribute to raising situational awareness, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. It shall also involve the carrying out of risk analyses. Without prejudice to Articles 3 and 4, 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.

2. The border guards shall use all necessary resources, including stationary or mobile units, to carry out border surveillance. Border surveillance shall be carried out in such a way as to prevent and discourage persons from unauthorised border crossings between border crossing points or from circumventing the checks at border crossing points, and shall be carried out in full compliance with the obligations laid down in Article 4.

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall make use of situational pictures, to be better able to reduce the loss of lives of migrants at, along or in proximity of the external borders. It shall involve frequent and sudden changes to surveillance periods and other methods or techniques, in order to prevent or detect unauthorised border crossings effectively.

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive. The aim of such surveillance is to prevent unauthorised border crossings or to apprehend individuals in connection with an unauthorised crossing of the external border. Surveillance may also be carried out by using technical means, including electronic means, equipment, surveillance systems and, where appropriate, all types of stationary and mobile infrastructure.

5. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 of this Regulation concerning additional measures governing surveillance, including the development of common minimum standards for border surveillance. Those common minimum standards shall take into account the type of borders, i.e. land, sea or air borders, the impact levels attributed to each external border section in accordance with Article 34 of Regulation (EU) 2019/1896 of the European Parliament and of the Council (*3) and other relevant factors, such as geographical particularities.

(*3) Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).’;"

(5)	Chapter V is renamed as follows: ‘Specific measures relating to the external borders’;

(6)

the following Article is inserted:

‘Article 21a

Temporary restrictions on travel to the Union

1. This Article shall apply to large-scale public health emergencies.

2. The Council, on the basis of a proposal by the Commission, may adopt an implementing Regulation providing for temporary restrictions on travel to the Member States to be applied at the external borders.

Temporary restrictions on travel may include temporary restrictions on entry to the Member States and temporary health-related restrictions that are necessary for the protection of public health in the area without internal border control. Those temporary health-related restrictions may include testing, quarantine and self-isolation.

Temporary restrictions on travel to the Union shall be proportionate and non-discriminatory. Where a Member State adopts stricter restrictions than those laid down in the implementing act, those restrictions shall not have a negative impact on the functioning of the area without internal border control. Temporary health-related restrictions on persons enjoying the right of free movement under Union law shall comply with Directive 2004/38/EC at all times.

3. The following categories of persons shall be exempted from the restrictions on entry, independent of the purpose of their travel:

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

(b)

third-country nationals who are long-term residents under Directive 2003/109/EC, persons deriving their right to reside from other instruments of Union law or national law, including beneficiaries of international protection or persons who hold national long-stay visas, as well as their respective family members.

4. Categories of persons listed in Annex XI, part A, shall be exempted from restrictions on entry.

5. Any category of persons listed in Annex XI, part B, shall be exempted from restrictions on entry where that category is included in the implementing regulation referred to in paragraph 2.

6. The implementing Regulation referred to in paragraph 2 shall, where appropriate:

(a)	identify, where required by the nature of the large-scale public health emergency, the categories of persons undertaking essential travel listed in Annex XI, part B, to be exempted from restrictions on entry;

(b)

determine any geographical areas or third countries from which travel may be subject to restrictions or exemptions from restrictions, and establish a procedure for the periodic review of the situation of such areas or countries and of the restrictions on travel imposed on the basis of objective methodology and objective criteria, including, in particular, the epidemiological situation;

(c)	lay down the conditions under which non-essential travel may be restricted or exempted from restrictions, including proof to be presented to support the exemption and the conditions relating to the duration and nature of stay in the areas or countries referred to in point (b);

(d)	refer to minimum temporary health-related restrictions to which persons referred to in paragraph 3, points (a) and (b), may be subject;

(e)	by way of derogation from paragraphs 4 and 5 lay down the conditions under which travel restrictions may be imposed on persons undertaking essential travel;

7. Restrictions on entry to the Member States for persons undertaking essential travel shall be imposed only exceptionally, for a strictly limited period of time, until sufficient information about the large-scale public health emergencies referred to in paragraph 1„ is available and until the Council, on a proposal by the Commission, identifies and adopts alternative health-related restrictions that are necessary to protect public health and that are to be applied to those persons,’

;

(7)

Article 23 is replaced by the following:

‘Article 23

Checks within the territory

The absence of border control at internal borders shall not affect:

(a)

the exercise of police or other public powers by the competent authorities of the Member States in their territory, including in their internal border areas, as conferred on them by national law, insofar as the exercise of those powers does not have an effect equivalent to border checks. The exercise of such powers may include, where appropriate, the use of monitoring and surveillance technologies generally used in the territory for the purposes of addressing threats to public security or public policy. The exercise by competent authorities of their powers shall not, in particular, be considered equivalent to the exercise of border checks when the measures fulfil each of the following conditions:

(i)	do not have border control as an objective;

(ii)

are based on general police information or, where the aim is to contain the spread of an infectious disease, on public health information, and the experience of the competent authorities regarding possible threats to public security or public policy and aim, in particular, to:

—	combat cross-border crime,

—	reduce illegal immigration, or

—	contain the spread of an infectious disease with epidemic potential as identified by the European Centre for Disease Control;

(iii)

are devised and executed in a manner that is clearly distinct from systematic checks on persons at the external borders, including where they are conducted at transport hubs or directly on board of passenger transport services and provided that they are based on a risk assessment;

(b)	the possibility for the competent authorities of a Member State or for carriers to carry out security checks on persons at transport hubs in accordance with national law, provided that such checks are also carried out on persons travelling within a Member State;

(c)	the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents;

(d)

the possibility for a Member State to provide by law for an obligation for third-country nationals to report their presence on its territory and an obligation for managers of establishments providing accommodation to ensure that third-country nationals complete and sign registration forms, with the exception of accompanying spouses or accompanying minors or members of travel groups, pursuant to the provisions of Articles 22 and 45, respectively, 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 (“the Schengen Convention”).’

;

(8)

the following Article is inserted:

‘Article 23a

Procedure for transferring persons apprehended in internal border areas

1. Without prejudice to Article 22, this Article lays down the procedure for the transfer of a third-country national apprehended in border areas as referred to in Article 23, in circumstances where the following conditions are fulfilled:

(a)

the third-country national is apprehended during checks involving the competent authorities of both Member States within the framework of bilateral cooperation, which may include, in particular, joint police patrols, provided that the Member States have agreed to use such a procedure within that bilateral cooperation framework; and

(b)

there are clear indications that the third-country national has arrived directly from the other Member State, and it is established that the third-country national has no right to stay on the territory of the Member State in which he or she has arrived, on the basis of information immediately available to the apprehending authorities, including statements from the person concerned, identity, travel or other documents found on that person or the results of searches carried out in relevant national and Union databases.

The procedure laid down in paragraphs 1 and 2 shall not apply to applicants, as defined in Article 3, point (13) of Regulation (EU) 2024/1348 of the European Parliament and of the Council (*4) or to beneficiaries of international protection, as defined in Article 3, point (4) of Regulation (EU) 2024/1347 of the European Parliament and of the Council (*5).

When transferring a third-country national who the transferring Member State presumes to be a minor, that transferring Member State shall inform the receiving Member State of that presumption and both Member States shall ensure that all measures are taken in the best interests of the child and in accordance with their respective national laws.

2. By way of derogation from Article 6(1) of Directive 2008/115/EC, the competent authorities of a Member State may, where the conditions laid down in paragraph 1 of this Article are met, decide to immediately transfer the third-country national concerned to the Member State from which the person arrived, in accordance with the procedure set out in Annex XII.

3. Third-country nationals apprehended in border areas and transferred under the procedure in this Article shall have the right to appeal. Appeals against the transfer decision shall be conducted in accordance with national law of the transferring Member State. Those third-country nationals shall be provided with an effective remedy in accordance with Article 47 of the Charter. A written indication of contact points able to provide information on representatives competent to act on behalf of those third-country nationals in accordance with national law shall also be given to them by the transferring Member State in a language that they understand or are reasonably supposed to understand. Lodging such an appeal shall not have suspensive effect.

4. Where a transferring Member State applies the procedure referred to in paragraph 2, the receiving Member State shall be required to take all measures necessary to receive the third-country national concerned in accordance with the procedures set out in Annex XII. All relevant provisions of Directive 2008/115/EC shall apply in the receiving Member State.

5. Member States shall define practical arrangements under their bilateral cooperation frameworks, including with a view to, as a rule, avoiding the use of the procedure referred to in this Article, in particular on the sections of the internal borders where border control has been reintroduced or prolonged.

6. The procedure laid down in this Article is without prejudice to existing bilateral agreements or arrangements as referred to in Article 6(3) of Directive 2008/115/EC.

7. From 11 July 2025 and annually thereafter, Member States shall submit to the Commission the data recorded in accordance with Annex XII, part A, point 4.

(*4) Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (OJ L, 2024/1348, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1348/oj)."

(*5) Regulation (EU) 2024/1347 of the European Parliament and of the Council of 14 May 2024 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, amending Council Directive 2003/109/EC and repealing Directive 2011/95/EU of the European Parliament and of the Council (OJ L, 2024/1347, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1347/oj ’;"

(9)

the first paragraph of Article 24 is replaced by the following:

‘Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not based exclusively on road-safety considerations or required for the use of the technologies referred to in Article 23, point (a).’

;

(10)

Article 25 is replaced by the following:

‘Article 25

General framework for the temporary reintroduction or prolongation of border control at internal borders

1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders.

A serious threat to public policy or internal security may, in particular, be considered to arise from:

(a)	terrorist incidents or threats, and threats posed by serious organised crime;

(b)	large-scale public health emergencies;

(c)

an exceptional situation characterised by sudden large-scale unauthorised movements of third-country nationals between the Member States, putting a substantial strain on the overall resources and capacities of well-prepared competent authorities and which is likely to put at risk the overall functioning of the area without internal border control, as evidenced by information analysis and all available data, including from relevant Union agencies;

(d)	large scale or high profile international events;

2. In all cases, border control at internal borders shall be reintroduced only as a measure of last resort. The scope and duration of the temporary reintroduction of border control shall not exceed what is strictly necessary to respond to the serious threat identified.

Border control may only be reintroduced or prolonged pursuant to Articles 25a and 28 where a Member State has established that such a measure is necessary and proportionate, taking into account the criteria referred to in Article 26(1), and, where such control is prolonged, also taking into account the risk assessment referred to in Article 26(2). Border control may also be reintroduced in accordance with Article 29, taking into account the criteria referred to in Article 30.

3. Where the same serious threat persists, border control at internal borders may be prolonged in accordance with Articles 25a or 29, or, where the threat relates to large-scale public health emergencies, Article 28.

The same serious threat shall be considered to persist where the justification put forward by the Member State for prolonging border control is based on the same grounds as those that justified the initial reintroduction of the border control.’

;

(11)

the following Article is inserted:

‘Article 25a

Procedure for cases requiring action due to unforeseeable or foreseeable events

1. Where a serious threat to public policy or internal security in a Member State is unforeseeable and requires immediate action, the Member State may, on an exceptional basis, immediately reintroduce border control at internal borders.

2. At the same time as reintroducing border control at internal borders under paragraph 1 of this Article, the Member State shall notify the European Parliament, the Council, the Commission and the other Member States of the reintroduction of border control, in accordance with Article 27(1).

3. Where a Member State reintroduces border control at internal borders under paragraph 1, the border control shall remain in place no longer than 1 month. If the serious threat to public policy or internal security persists for longer than that period, the Member State may prolong border control at internal borders for further periods, up to a maximum duration not exceeding three months.

4. Where a serious threat to public policy or internal security is foreseeable in a Member State, the Member State shall notify the European Parliament, the Council, the Commission and the other Member States in accordance with Article 27(1), at the latest 4 weeks before the planned reintroduction of border control, or as soon as possible where the circumstances giving rise to the need to reintroduce border control at internal borders become known to the Member State less than 4 weeks before the planned reintroduction.

5. Where paragraph 4 of this Article applies, and without prejudice to paragraph 6, border control at internal borders may be reintroduced for a period of up to six months. Where the serious threat to public policy or internal security persists beyond that period, the Member State may prolong the border control at internal borders for renewable periods of up to 6 months. Any prolongation shall be notified to the European Parliament, the Council and the Commission and the other Member States in accordance with Article 27 and within the time limits referred to in paragraph 4 of this Article. Subject to paragraph 6 of this Article, the maximum duration of border control at internal borders shall not exceed 2 years.

6. Where a Member State considers that there is a major exceptional situation with regard to a persisting serious threat justifying the continued need for border control at internal borders in excess of the maximum period referred to in paragraph 5 of this Article it shall notify the European Parliament, the Council and the Commission and the other Member States of its intention to prolong internal border control for an additional period of up to 6 months. That notification shall be made at the latest 4 weeks before the planned prolongation and, taking into account the opinion of the Commission issued pursuant to Article 27a(3), shall include a risk assessment in accordance with Article 26(2):

(a)	substantiating the continued threat to public policy or internal security;

(b)	substantiating that alternative measures to remedy the threat are deemed or have been found to be ineffective at the time of the notification;

(c)	presenting the mitigating measures considered to accompany the border control at internal borders;

(d)	including, where appropriate, a presentation of the means, actions, conditions and timeline considered with a view to lifting the border control at internal borders.

Within 3 months after the notification referred to in the first subparagraph, the Commission shall issue a new opinion on the necessity and proportionality of the prolongation of border control at internal borders. Following the receipt of that notification, the Commission may, on its own initiative, or shall, at the request of the Member State directly affected, start a consultation process, in accordance with Article 27a(1).

Where, in a major exceptional situation, the continued need for border control at internal borders is confirmed as a result of the procedure referred to in this paragraph, but the additional period of 6 months referred in the first subparagraph is not sufficient to ensure the availability of effective alternative measures to address the persisting threat, a Member State may decide to prolong border control at internal borders for a further and final additional period of up to 6 months, in line with the risk assessment as referred to in the second subparagraph. Where a Member State decides to do so, it shall notify the Commission without delay of its intention to prolong its border control at internal borders. The Commission shall adopt without delay a recommendation on the compatibility of such a final prolongation with the Treaties, in particular with the principles of necessity and proportionality. That recommendation shall also identify, where appropriate with other Member States, the effective compensatory measures to be implemented.’

;

(12)

Article 26 is replaced by the following:

‘Article 26

Criteria for the temporary reintroduction and prolongation of border control at internal borders

1. To establish whether the reintroduction of border control at internal borders is necessary and proportionate in accordance with Article 25(2), a Member State shall in particular assess:

(a)

the appropriateness of the measure of reintroducing border control at internal border, having regard to the nature of the serious threat identified and in particular, whether the reintroduction of border control at internal borders is likely to adequately remedy the threat to public policy or internal security and whether the objectives pursued by such reintroduction could be attained by:

(i)	the use of alternative measures such as proportionate checks carried out in the context of checks within the territory as referred to in Article 23, point (a);

(ii)	the use of the procedure laid down in Article 23a;

(iii)

other forms of police cooperation provided for under Union law;

(iv)	common measures regarding temporary restrictions on travel to the Member States as referred to in Article 21a(2);

(b)

the likely impact of such a measure on:

(i)	the movement of persons within the area without internal border control; and

(ii)	the functioning of the cross-border regions, taking into account the strong social and economic ties between them.

2. Where border control at internal borders has been in place for 6 months in accordance with Article 25a(5), the Member State concerned shall carry out a risk assessment, which, in addition to the elements contained in Article 27, paragraphs 2 and 3, shall also include a reassessment of the criteria laid down in paragraph 1 of this Article.

3. Where border control at internal borders has been reintroduced or prolonged, the Member States concerned shall ensure that it is accompanied by appropriate measures that mitigate the impact resulting from the reintroduction of border control on persons and the transport of goods, giving particular consideration to the strong social and economic ties between cross-border regions, and to persons undertaking essential travel.’

;

(13)

Article 27 is replaced by the following:

‘Article 27

Notification of temporary reintroduction or prolongation of border control at internal borders and risk assessment

1. Notifications by Member States of the reintroduction or prolongation of border control at internal borders shall contain the following information:

(a)	the reasons for the reintroduction or prolongation, including all relevant data detailing the events that constitute a serious threat to its public policy or internal security;

(b)	the scope of the proposed reintroduction or prolongation, specifying at which part or parts of the internal borders border control is to be reintroduced or prolonged;

(c)	the names of the authorised crossing-points;

(d)	the date and duration of the planned reintroduction or prolongation;

(e)	the assessment of the necessity and proportionality referred to in Article 26(1) and, in the case of a prolongation, in Article 26(2);

(f)	where appropriate, the measures to be taken by other Member States.

A notification may be submitted jointly by two or more Member States.

Member States shall submit the notification using the template to be established by the Commission pursuant to paragraph 6.

2. Where border control has been in place for 6 months in accordance with Article 25a(5), any subsequent notification for the prolongation of such control shall include a risk assessment. The risk assessment shall present the scale and anticipated evolution of the serious threat, in particular how long the serious threat is expected to persist and which sections of the internal borders may be affected, as well as information regarding coordination measures with the other Member States impacted or likely to be impacted by the border control at internal borders.

3. Where Member States reintroduce or prolong border control because of a situation referred to in Article 25(1) point (c), the assessment required by paragraph 1, point (e), of this Article shall also include a risk assessment and information on the sudden large-scale unauthorised movements, including any information obtained from the relevant Union agencies in line with their respective mandates and data analysis from relevant information systems.

4. The Member State concerned shall upon request, provide the Commission any further information, including on the coordination measures with the Member States affected by the planned prolongation of border control at internal borders as well as further information needed to assess the possible use of measures referred to in Articles 23 and 23a.

5. Member States shall not be required to provide all the information referred to in paragraphs 1 to 4 of this Article in cases justified on public security grounds, taking into account the confidentiality of ongoing investigations. Member States submitting a notification under paragraph 1 or 2 may, where necessary and in accordance with national law, decide to classify all or parts of the notified information, in particular the risk assessments. Such classification shall not preclude access to information, through appropriate and secure channels, by the other Member States affected by the temporary reintroduction of border control at internal borders. Such classification shall not preclude information from being made available by the Member States to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament under this Article shall not include the risk assessments referred to in paragraph 2 and shall comply with rules concerning the forwarding and handling of classified information.

6. The Commission shall adopt an implementing act to establish the template referred to in the third subparagraph of paragraph 1 of this Article and shall make the template available online. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2).’

;

(14)

the following Article is inserted:

‘Article 27a

Consultation with the Member States and opinion of the Commission

1. Following receipt of notifications, submitted under Article 27(1), the Commission may, on its own initiative, or shall, at the request of a Member State directly affected by border control at internal borders, establish a consultation process including joint meetings between the Member State that is planning to reintroduce or prolong border control at internal borders, and the other Member States, especially those directly affected by such measures and the relevant Union agencies.

The objective of the consultation shall be to examine in particular the threat to public policy or internal security, the necessity and proportionality of the intended reintroduction of border control, at the internal borders taking into account the appropriateness of alternative measures, and, if border control has already been reintroduced, the impact thereof, as well as the ways of ensuring implementation of the mutual cooperation between the Member States in relation to the reintroduction of border control at internal borders.

The Member State planning to reintroduce or prolong border control at internal borders shall take into account the results of such consultation when deciding whether to reintroduce or prolong border control at internal borders and when carrying out border control at the internal border.

2. Following the receipt of notifications submitted in relation to the reintroduction or prolongation of border control at internal borders, the Commission shall, or any Member State may, without prejudice to Article 72 TFEU, issue an opinion, if, based on the information contained in the notification and risk assessment, where appropriate, or any additional information, they have concerns as regards the necessity or proportionality of the planned reintroduction or prolongation of border control at internal borders.

3. Following receipt of notifications submitted in relation to a prolongation of border control at the internal border under Article 25a(4) which leads to the continuation of border control at internal borders for 12 months in total, the Commission shall issue an opinion on the necessity and proportionality of such border control.

The opinion of the Commission shall include at least:

(a)	an assessment of whether the reintroduction or prolongation of border control at internal borders complies with the principles of necessity and proportionality;

(b)	an assessment of whether alternative measures to remedy the serious threat were sufficiently explored;

Where the reintroduction of border control at internal borders is assessed and is considered to respect the principles of necessity and proportionality, the opinion shall contain recommendations, where appropriate, on the improvement of the cooperation between Member States in order to limit the impact of border control at internal borders and contribute to the reduction of the persisting threat.

4. Where an opinion referred to in paragraphs 2 or 3 is issued, the Commission shall establish a consultation process, in accordance with paragraph 1, in order to discuss the opinion with the Member States.’

;

(15)

Article 28 is replaced by the following:

‘Article 28

Specific mechanism where a large-scale public health emergency puts at risk the overall functioning of the area without internal border control

1. Where the Commission establishes that there is a large-scale public health emergency that affects several Member States, putting at risk the overall functioning of the area without internal border control, it may make a proposal to the Council to adopt an implementing decision authorising the reintroduction of border control by Member States, including any appropriate mitigating measures to be established at national and Union level, where the available measures referred to in Articles 21a and 23 are not sufficient to address the large-scale public health emergency. The Member States may request the Commission to submit such a proposal to the Council.

2. The Council implementing decision referred to in paragraph 1 shall cover a period of up to 6 months and may be renewed, upon proposal from the Commission, for further periods of up to 6 months as long as the large-scale public health emergency persists, taking into account the review referred to in paragraph 4.

3. Where Member States reintroduce or prolong border control because of the large-scale public health emergency referred to in paragraph 1, that border control shall, as of the entry into force of the Council implementing decision referred to in paragraph 1, be based on that decision.

4. The Commission shall regularly review the evolution of the large-scale public health emergency as referred to in paragraph 1, as well as the impact of the measures adopted in accordance with the Council implementing decision referred to in that paragraph, with a view to assessing whether those measures remain justified and if not, to proposing the lifting of border control at internal borders as soon as possible.

5. Member States shall immediately notify the European Parliament, the Council, the Commission and the other Member States of a reintroduction of border control in accordance with the decision referred to in paragraph 1.

6. Member States may take other measures, as referred to in Article 23, in order to limit the scope of border control at internal borders. The Commission shall take those measures into account in the review referred to in paragraph 4 of this Article.’

;

(16)

Article 33 is replaced by the following:

‘Article 33

Report on the reintroduction of border control at internal borders

1. Within 4 weeks of the lifting of border control at internal borders, Member States which have carried out border control at internal borders shall present a report to the European Parliament, the Council and the Commission on the reintroduction and, where applicable, the prolongation of border control at internal borders.

2. Without prejudice to the paragraph 1, where border control are prolonged as referred to in Article 25a(5), the Member State concerned shall submit a report at the expiry of 12 months and 12 months thereafter if border control is exceptionally maintained.

3. The report shall outline, in particular, the initial and follow-up assessment of the necessity and proportionality of border control, the fulfilment of the criteria referred to in Articles 26, the operation of the checks, the practical cooperation with neighbouring Member States, the resulting impact on the free movement of persons in particular in the cross-border regions, the effectiveness of the reintroduction of border control at internal borders, including an ex post assessment of the necessity and proportionality of the reintroduction of border control.

4. The Commission shall adopt an implementing act to establish a uniform format for such report and shall make it available online. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2).

5. The Commission may issue an opinion on that ex post assessment of the temporary reintroduction of border control at one or more internal borders or at parts thereof.

6. At least once per year, the Commission shall report to the European Parliament and to the Council jointly on the functioning of the area without internal border control (the “State of Schengen report”). The Commission may also discuss the State of Schengen report separately with the European Parliament and the Council. The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year, as well as the actions taken by the Commission with regard to the reintroduction of border control at internal borders. The report shall pay particular attention to border control that has been in place for longer than 12 months. It shall also include an assessment of the necessity and proportionality of the reintroduction and prolongations of border control in the period covered by that report as well as information on the trends within the area without internal border control as regards the unauthorised movements of third-country nationals, taking into account available information from the relevant Union agencies and data analysis from relevant information systems.’

;

(17)

Article 36 is replaced by the following:

‘Article 36

Amendments to the Annexes

1. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning amendments to Annexes III, IV and VIII.

2. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 to supplement this Regulation by adding in Annex XI, part B, categories of persons undertaking essential travel.

3. Where, in duly justified cases, regarding the nature of the large-scale public health emergency, imperative grounds of urgency so require, the procedure provided for in Article 37a shall apply to delegated acts adopted pursuant to paragraph 2 of this Article.’

;

(18)

the following Article is inserted:

‘Article 37a

Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay and shall apply for as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 37(5). In such a case, the Commission shall repeal the act immediately following the notification of the decision to object by the European Parliament or by the Council.’

;

(19)

in Article 39(1), the following point is added:

‘(h)	the areas considered as cross-border regions and any relevant changes thereto.’

;

(20)

the following Article is inserted:

‘Article 42b

Notification of cross-border regions

By 11 January 2025, all Member States with common internal borders shall, in close cooperation, determine the areas of their territory considered as cross-border regions, taking into account the strong social and economic ties between them, and notify the Commission thereof.

Member States shall also inform the Commission of any relevant changes thereto.’

;

(21)	the text set out in the Annex to this Regulation is added as Annexes XI and XII to Regulation (EU) 2016/399.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

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