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
Please note
This page contains a limited version of this dossier in the EU Monitor.
| 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 | December 14, 2021 |
Contents
Article 1
(1) Article 2 is modified as follows:
a) point 12 is replaced by the following:
12. ‘border surveillance’ means the surveillance of borders between crossing points and of border crossing points outside fixed opening hours, including preventative measures to detect and prevent unauthorised border crossings or the circumvention of border checks.
b) the following points 27 to 30 are added:
27. ‘instrumentalisation of migrants’ refers to a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders, onto or from within its territory and then onwards to those external borders, where such actions are indicative of an intention of a third country to destabilise the Union or a Member State, where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security;
28. ‘essential travel’ means travel in connection with an essential function or need, taking into account any applicable international obligations of the Union and of the Member States and listed in Annex XI;
29. ‘non-essential travel’ means travel for purposes other than essential travel;
30. ‘transport hubs’ means airports, sea or river ports, train or bus stations.’
(2) In Article 5, a new paragraph 4 is added:
‘4. In a situation of instrumentalisation of migrants, Member States may limit the number of border crossing points as notified pursuant to paragraph 1 or their opening hours where the circumstances so require.
Any limitations adopted pursuant to the first subparagraph shall be implemented in a manner that is proportionate and that takes full account of the rights of:
(a) the 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 56 , persons deriving their right to reside from other instruments of Union or national law or who hold national long-term visas, as well as their respective family members;
(c) third-country nationals seeking international protection.’
(3) Article 13 is replaced by the following:
‘Article 13
Border surveillance
1. The main purpose of border surveillance shall be to detect and 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.
2. The border guards shall use stationary or mobile units to carry out border surveillance.
That surveillance shall be carried out in such a way as to prevent and discourage persons from unauthorised border crossings between border crossing points and from circumventing the checks at border crossing points.
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 involve frequent and sudden changes to surveillance periods and other methods or techniques, so that unauthorised border crossings are effectively detected or prevented.
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 being to prevent unauthorised border crossings or apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means, equipment and surveillance systems.
5. In a situation of instrumentalisation of migrants, the Member State concerned shall intensify border surveillance as necessary in order to address the increased threat. In particular, the Member State shall enhance, as appropriate, the resources and technical means to prevent an unauthorised crossing of the border.
Those technical means may include modern technologies including drones and motion sensors, as well as mobile units to prevent unauthorised border crossings into the Union.
6. Without prejudice to the support that the European Border and Coast Guard Agency may provide to the Member States, in the event of a situation of instrumentalisation of migrants, the Agency may carry out a vulnerability assessment as provided for in Articles 10(1), point (c), and Article 32 of Regulation (EU) 2019/1896 of the European Parliament and Council 57 , with a view to providing the necessary support to the Member State concerned.
On the basis of the results of that assessment or any other relevant vulnerability assessment or the attribution of a critical impact level to the border section concerned within the meaning of Article 35(1)(d) of Regulation (EU) 2019/1896, the Executive Director of the European Border and Coast Guard Agency shall make recommendations, in accordance with Article 41(1) of that Regulation to any Member State concerned.
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 37 concerning additional measures governing surveillance, including the development of standards for border surveillance, in particular the use of surveillance and monitoring technologies at the external borders, taking into account the type of borders, the impact levels attributed to each external border section in accordance with Article 34 of the Regulation (EU) 2019/1896 and other relevant factors.’
(4) Chapter V is renamed as follows: “Specific measures relating to the external borders”
In Chapter V, the following Article 21a is inserted:
“Article 21a
Restrictions on travel to the European Union
1. This Article shall apply to situations where the European Centre for Disease Prevention and Control or the Commission identify the existence in one or more third countries of an infectious disease with epidemic potential as defined by the relevant instruments of the World Health Organization.
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.
Such temporary restrictions on travel may include restrictions on entry to the Member States and other measures considered necessary for the protection of public health in the area without controls at internal borders, such as for instance testing, quarantine, and self-isolation.
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 or who hold national long-term visas, as well as their respective family members.4.The implementing regulation referred to in paragraph 1 shall, where appropriate:
a) define any categories of persons undertaking non-essential travel to be exempted from any restrictions applicable to travel;
b) identify any geographical areas or third countries from which non-essential travel may be subject to restrictions or exemptions from restrictions, having regard to the particular situation of the areas or countries concerned on the basis of objective methodology and criteria, including, in particular, the epidemiological situation;
c) lay down the conditions under which non-essential travel as referred to under points (a) and (b) may be restricted or exempt 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) lay down the conditions under which travel restrictions may be imposed, exceptionally, on persons undertaking essential travel, in the event that the epidemiological situation worsens quickly and, in particular where a variant of concern or variant of interest has been detected.
5. Restrictions on essential travel referred to in paragraph 4(d) may not include restrictions on entry as regards travellers listed in point i. and points iv. to viii. of Annex XI.”
(5) Article 23 is replaced by the following:
“Article 23
Exercise of public powers
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 under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks.
The exercise by competent authorities of their powers may not, in particular, be considered equivalent to the exercise of border checks when the measures:
i) do not have border control as an objective;
ii) are based on general information and experience of the competent authorities regarding possible threats to public security or public policy and aim, in particular, to:
–combat cross-border crime;
–combat irregular residence or stay, linked to irregular migration; or
–contain the spread of an infectious disease with epidemic potential as detected by the European Centre for Disease Control;
iii) are devised and executed in a manner 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 services and when they are based on risk analysis;
iv) are carried out, where appropriate, on the basis of monitoring and surveillance technologies generally used in the territory, for the purposes of addressing threats to public security or public policy as set out under ii);
b) the possibility for a Member State to carry out security checks on persons carried out at transport hubs by the competent authorities under the law of each Member State, by their competent authorities or by carriers, 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 on third-country nationals to report their presence on its territory pursuant to the provisions of Article 22 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’);
e) checks for security purposes of passenger data against relevant databases on persons traveling in the area without controls at internal borders which can be carried out by the competent authorities under the applicable law.”
(6) The following Article 23a is inserted:
“Article 23a
Procedure for transferring persons apprehended at the internal borders
1. This Article applies to the apprehension of a third-country national in the vicinity of internal borders, in circumstances where all of the following conditions are fulfilled:
a) the third country national concerned does not or no longer fulfils the entry conditions laid down in Article 6(1);
b) the third country national is not covered by the derogation laid down in Article 6(5) point (a);
c) the third country national is apprehended as part of cross-border police operational cooperation, in particular, during joint police patrols;
d) there are clear indications that the third country national has arrived directly from another Member State, 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.
2. The competent authorities of the Member State may, based on a finding that the third country national concerned has no right to stay on its territory, decide to immediately transfer the person to the Member State from which the person entered or sought to enter, in accordance with the procedure set out in Annex XII.
3. Where a 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.
4. From [one year following the entry into force of the Regulation] and annually thereafter, Member States shall submit to the Commission the data recorded in accordance with point 3 of Annex XII, regarding the application of paragraphs 1, 2 and 3.”
(7) At the end of the first paragraph of Article 24, the first paragraph 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 exclusively based on road-safety considerations or required for the use of the technologies referred to in Article 23, point (a)(iv).”
(8) 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 controls, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border controls at all or specific parts of its internal borders.
A serious threat to public policy or internal security may be considered to arise from, in particular:
(a)activities relating to terrorism or organised crime;
(b)large scale public health emergencies;
(c)a situation characterised by large scale unauthorised movements of third-country nationals between the Member States, putting at risk the overall functioning of the area without internal border control;
(d)large scale or high profile international events such as sporting, trade or political events.
2. Border controls may only be introduced 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, in case such controls are prolonged, also the criteria referred to in Article 26(2). Border controls may also be reintroduced in accordance with Article 29, taking into account the criteria referred to in Article 30.
In all cases, border controls at internal borders shall be reintroduced 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.
3. Where the same threat continues to persist, border controls at internal borders may be prolonged in accordance with Articles 25a, 28 or 29.
The same threat shall be considered to exist where the justification advanced by the Member State for prolonging border controls is based on the determination of the continuation of the same threat that had justified the initial reintroduction of the border controls.”
(9) A new Article 25a is inserted after Article 25:
“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. The Member State shall, at the same time as reintroducing border control under paragraph 1, notify the Commission and the other Member States of the reintroduction of border controls, in accordance with Article 27(1).
3. For the purposes of paragraph 1, border control at internal borders may be immediately reintroduced for a limited period of up to one month. If 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 further periods, leading 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 Commission and the other Member States and the Commission in accordance with Article 27(1), at the latest four weeks before the planned reintroduction of border controls, or within a shorter period where the circumstances giving rise to the need to reintroduce border controls at internal borders become known less than four weeks before the planned reintroduction.
5. For the purposes of paragraph 4, and without prejudice to Article 27a(4), 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 six months.
Any prolongation shall be notified to the Commission and the other Member States in accordance with Article 27 and within the time limits referred to in paragraph 4. Subject to Article 27a(5), the maximum duration of border control at internal borders shall not exceed two years.
6. The period referred to in paragraph 5 shall not include periods referred to in paragraph 3.”
(10) 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, a Member State shall in particular consider:
(a)the appropriateness of the measure of reintroducing border controls at internal border, having regard to the nature of the serious threat identified and in particular, whether the reintroduction of border controls at internal borders is likely to adequately remedy the threat to public policy or internal security;
(b) the likely impact of such a measure on:
–movement of persons within the area without internal border control and
–the functioning of the cross-border regions, taking into account the strong social and economic ties between them.
2. Where a Member States decides to prolong the border control at internal borders pursuant to Article 25a(5), it shall also assess in detail whether the objectives pursued by such prolongation could be attained by:
a) the use of alternative measures such as proportionate checks carried out in the context of the lawful exercise of powers as referred to in Article 23 point (a);
b) the use of the procedure as referred to in Article 23a;
c) forms of police cooperation as provided for under Union law, including on matters such as joint patrols, joint operations, joint investigation teams, cross-border hot pursuits, or cross-border surveillance.
3. Where border controls at internal borders have been reintroduced or prolonged, the Member States concerned shall, where necessary, ensure that they are accompanied by appropriate measures that mitigate the impacts resulting from the reintroduction of border controls on persons and the transport of goods, giving particular consideration to the cross-border regions.”
(11) Article 27 is replaced by the following:
“Article 27
Notification of temporary reintroduction of internal border controls and risk assessment
1. Notifications by Member States of the reintroduction or prolongation of internal border controls 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 considerations as to 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 the other Member States.
A notification may be submitted jointly by two or more Member States.
The notification shall be provided in accordance with a template to be established by the Commission by an implementing act and to be made available online. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2).”
2. Where border controls have been in place for six months in accordance with Article 25a(4), any subsequent notification for the prolongation of such controls shall include a risk assessment. The risk assessment shall present the scale and anticipated evolution of the identified serious threat, in particular how long the identified 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 such measures.
3. Where the reintroduction of border controls or its prolongation refers to large scale unauthorised movements referred to in Article 25(1) point (b), the risk assessment shall also provide information on the scale and trends of such unauthorised movements, including any information obtained from the relevant EU agencies in line with their respective mandates and data analysis from relevant information systems.
4. The Member State concerned shall upon request by the Commission, provide 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 Article 23 and 23a .
5. Member States submitting a notification under paragraphs 1 or 2 may, where necessary and in accordance with national law, decide to classify all or parts of the notified information.
Such classification shall not preclude access to information, through appropriate and secure police cooperation channels, by the other Member States affected by the temporary reintroduction of border controls at internal borders.”
(12) The following Article 27a 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 establish a consultation process, where appropriate, 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 consultation shall concern in particular the identified threat to public policy or internal security, the relevance of the intended reintroduction of border controls taking into account the appropriateness of alternative measures, as well as the ways of ensuring implementation of the mutual cooperation between the Member States in relation to the reintroduced border controls.
The Member State planning to reintroduce or prolong border control at internal borders shall take utmost account of the results of such consultation 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 controls at internal borders, the Commission or any other 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 controls at internal borders for eighteen months in total, the Commission shall issue an opinion on necessity and proportionality of such internal border controls.
4. Where an opinion referred to in paragraphs 2 or 3 is issued, the Commission may establish a consultation process in order to discuss the opinion with the Member States. Where the Commission or a Member State issues an opinion expressing concerns on the necessity or proportionality of reintroduced internal border controls the Commission shall launch such a process.
5. Where a Member State considers that there are exceptional situations justifying the continued need for internal border controls in excess of the maximum period referred to in Article 25(5), it shall notify the Commission in accordance with Article 27(2). The new notification from the Member State shall substantiate the continued threat to public policy or internal security, taking into account the opinion of the Commission given pursuant to paragraph 3. The Commission shall issue a follow up opinion.”
(13) Article 28 is replaced by the following:
“Article 28
Specific mechanism where the serious threat to public policy or internal security puts at risk the overall functioning of the area without internal border controls
1. Where the Commission, establishes that the same serious threat to internal security or public policy affects a majority of Member States, putting at risk the overall functioning of the area without internal border, it may, make a proposal to the Council to adopt an implementing decision authorising the reintroduction of border controls by Member States where the available measures referred to in Articles 23 and 23a are not sufficient to address the threat.
2. The decision shall cover a period of up to six months and may be renewed, upon proposal from the Commission, for further periods of up to six months as long as the threat persists, taking into account the review referred to in paragraph 5.
3. Where Member States reintroduce or prolong border controls because of the threat referred to in paragraph 1, those controls shall, as of the entry into force of the Council decision, be based on that decision.
4. The decision of the Council referred to in paragraph 1 shall also refer to any appropriate mitigating measures that shall be established at national and Union level in order to minimise the impacts caused by the reintroduction of border controls.
5. The Commission shall review the evolution of the identified threat as well as the impact of the measures adopted in accordance with the Council decision referred to in paragraph 1, with a view to assess whether the measures remain justified.
6. Member States shall immediately notify the Commission and the other Member States in the Council of a reintroduction of border controls in accordance with the decision referred to in paragraph 1.
7. The Commission may issue a recommendation indicating other measures as referred to in Articles 23 and 23a that could complement internal border controls or be more suitable to address the identified threat to internal security or public policy as referred to in paragraph 1.”
(14) Article 31 is amended as follows:
a) Article 31 becomes paragraph 1;
b) the following paragraph 2 is added:
‘2. Where a Member State notifies the Commission and the other Member States of the reintroduction of border controls in accordance with Article 27(1), it shall at the same time inform the European Parliament and the Council of the following:
a) the details of the internal borders where border control is to be reintroduced;
b) the reasons for the proposed reintroduction;
c) the names of the authorised crossing-points;
d) the date and duration of the planned reintroduction;
e) where appropriate, the measures to be taken by the other Member State.
3. The provision of information may be subject to classification of information by Member States pursuant to Article 27(4).
Member States shall not be required to provide all the information referred to in the paragraph 2 in cases justified on public security grounds.
The classification of information shall not preclude information from being made available by the Commission to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament under this Article shall comply with rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission.”
(15) Article 33 is replaced by the following:
“Article 33
Report on the reintroduction of border control at internal borders
1. Within four weeks of the lifting of border control at internal borders, Member States which have carried out border controls 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 first paragraph 1, where border controls are prolonged as referred to in Article 25a(5), the Member State concerned shall submit a report at the expiry of twelve months and every twelve months thereafter if border control is exceptionally maintained.
3. The report shall outline, in particular, the initial and follow-up assessment of the necessity of border controls and the respect 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 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 proportionality of the reintroduction of border control.
4. The Commission shall adopt a uniform format for such report and make it available online.
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. The Commission shall present to the European Parliament and to the Council, at least annually, a report on the functioning of the area without internal border control entitled (‘State of Schengen report’). The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year. It shall also include information on the trends within the Schengen area as regards the unauthorised movements of third country nationals, taking into account available information from the relevant Union agencies, data analysis from relevant information systems and an assessment of the necessity and proportionality of the reintroductions of border controls in the period covered by that report.”
(16) In Article 39 (1), the following point (h) is added:
“h)Member States shall notify to the Commission the local administrative areas considered as the cross-border regions and any relevant changes thereto.”
(17) The following Article 42b is added:
“Article 42b
Notification of cross-border regions
By [two months of the entry into force of this Regulation] at the latest, Member States shall notify the Commission the areas of their territory considered as the cross-border regions.
Member States shall also inform the Commission of any relevant changes thereto.”
(18) The following Annex XI is added:
“ ANNEX XI
Essential Travel
Essential functions or needs referred to in Article 2, point (23) refers to travel for any of the following function or needs:
i. Healthcare professionals, health researchers, and elderly care professionals;
ii. Frontier workers;
iii. Transport personnel;
iv. Diplomats, staff of international organisations and people invited by international organisations whose physical presence is required for the well-functioning of these organisations, military personnel and humanitarian aid workers and civil protection personnel in the exercise of their functions;
v. Passengers in transit;
vi. Passengers travelling for imperative family reasons;
vii. Seafarers;
viii. Persons in need of international protection or for other humanitarian reasons.”
(19) A new Annex XII is added:
“ANNEX XII
PART - A
Procedure for transferring persons apprehended at the internal borders
1. Decisions shall state the grounds for finding that a person has no right to stay. They shall take effect immediately.
2. The decision shall be issued by means of a standard form, as set out in Part B, completed by the competent national authority.
The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision by signing the form and shall be given a copy of the signed form.
Where the third-country national refuses to sign the standard form, the competent authority shall indicate this refusal in the form under the section ‘comments’.
3. The national authorities issuing a refusal decision shall record the following data:
a) to the extent that these can be established by them, the identity and nationality of the third-country national concerned,
b) the references of the identity document, if any,
c) where available, copies of any documents or data relating to the identity or nationality of the third country national concerned, in combination with the relevant national and Union databases.
d) the grounds for refusal,
e) the date of refusal,
f) the Member States to which the third country national was sent back.
4. The national authorities issuing a refusal decision shall collect the following data:
a) the number of persons refused entry;
b) the number of persons refused stay;
c) the number of persons sent back;
d) the Member State(s) to which persons were sent back;
e) where this information is available, the nationality of the third country nationals apprehended;
f) the grounds for refusal of entry and stay;
g) the type of border as specified in Article 2 point 1 of Regulation (EU) 2016/399 at which the third country nationals were sent back.
5. Persons refused entry or the right to stay shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national in a language that they understand or are reasonably supposed to understand. Lodging such an appeal shall not have suspensive effect.
6. The authorities empowered under national law shall ensure that the third-country national subject to a refusal decision is transferred to the competent authorities of the neighbouring Member State immediately and within 24 hours at the latest. The authorities empowered under national law in the neighbouring Member State shall cooperate with the authorities of the Member State to that end.
7. If a third-country national who has been subject to a decision referred to in paragraph 1 is brought to the border by a carrier, the authority responsible locally may:
(a)order the carrier to take charge of the third-country national and transport him or her without delay to the Member State from which he or she was brought;
(b)pending onward transportation, take appropriate measures, in compliance with national law and having regard to local circumstances, to prevent third-country nationals who have been refused entry from entering illegally.
PART - B
Standard form for transferring persons apprehended at the internal borders
Name of State
Logo of State (Name of Office)
____________________________
_________________________________________________________________________(1)
TRANSFER PROCEDURE AT THE INTERNAL BORDER
On _________________________ at (time) ___________ at the location (indicate type of the internal border nearby or other relevant information related to the apprehension by a joint patrol)___________________________________________
We, the undersigned, __________________________________________________________________________________have before us:
Personal data (subject to availability)
Surname_______________________________________________________ First name _________________________________________
Date of birth__________________________________ Place of birth ____________________________________________ Sex _________
Nationality ________________________________________ Resident in _____________________________________________________
Type of identity document ________________________________________________ number___________________________________
Issued in _____________________________________________ on _________________________________________________________
Visa number, if any ________________________ type _________________ issued by ________________________________________________
Valid from ________________________ until ________________________
For a period of ________ days: __________________________________________________________________
Coming from ___________________ by means of __________________ (indicate means of transport used, e.g. flight number), he/she is hereby informed that he/she has no right to stay in the country and will be transferred to ______________________ pursuant to (indicate references to the national la in force), for the following reasons:
□ (A) has no valid travel document(s)
□ (B) has a false/counterfeit/forged travel document
□ (C) has no valid visa or residence permit
□ (D) has a false/counterfeit/forged visa or residence permit
□ (E) has no appropriate documentation justifying the purpose and conditions of stay
The following document(s) could not be provided: ___________________________________________________________________
□ (F) has already stayed for 90 days in the preceding 180-day period on the territory of the Member States of the European Union
□ (G) does not have sufficient means of subsistence in relation to the period and form of stay, or the means to return to the county of origin or transit
□ (H) is a person for whom an alert has been issued for the purposes of refusing entry
□ in the SIS
□ in the national register
□ (I) is considered to be a threat to public policy, internal security, public health or the international relations of one or more of the Member States of the European Union (each State must indicate the references to national law relating to such transfer)
Comments
□ The person concerned declined to sign the form.
Person Concerned Officer responsible for checks
The person concerned may appeal against the decision that he/she has no right to stay as provided for in national law. The person concerned receives a copy of this document (each State must indicate the references to the national law and procedure relating to the right of appeal).
Article 2 - Amendment to Directive 2008/115/EC
“3. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State in accordance with the procedure provided for in Article 23a of the Regulation (EU) 2016/399 of the European Parliament and of the Council* or under bilateral agreements or arrangements.
The Member State which has taken back the third-country national concerned in accordance with the first subparagraph shall issue a return decision in accordance with paragraph 1. In such cases, the derogation laid down in the first subparagraph shall not apply.
Member States shall without delay notify any existing, amended or new bilateral agreements or arrangements to the Commission.”
* Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 077 23.3.2016, p. 1).
Article 3 - Transposition of amendment to Directive 2008/115/EC
They shall apply those provisions from [6 months from entry into force].
When Member States adopt those provisions, they shall contain a reference to Article 2 of this Regulation or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 4
However, Article 1, point 6, shall apply from [the date at which the amendments provided for in Article 2 apply in the Member States].
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.