COUNCILOF Brussels,13January2005PUBLIC THEEUROPEANUNION 5223/05 DOCUMENT PARTIALLY ACCESSIBLE TOTHEPUBLIC LIMITE FRONT 1 CODEC 16 COMIX 19 NOTE from: thePresidency to: WorkingPartyonFrontiers/MixedCommittee(EU/IcelandandNorway) Noprev.doc. 15948/04FRONT209COMIX754 No.Cionprop.: 10331/04FRONT111COMIX392(COM(2004) 391final) Subject: DraftRegulationoftheEuropeanParliamentandoftheCouncilestablishing aCommunityCodeontherulesgoverningthemovementofpersonsacross borders Followingthediscussionsheldunderthe NetherlandsPresidencywithregardtothedraft RegulationestablishingaCommunityCodeontherulesgoverningthemovementof persons across borders,delegationswillfindattachedareviseddraft,Articles135,basedondelegations' comments. Thetextoftheannexeswill berevisedatalaterstage. 5223/05 EB/cr 1 DGH I EN Conseil UE ANNEX DRAFTREGULATION OFTHEEUROPEAN PARLIAMENTAND OFTHECOUNCIL establishingaCommunityCodeontherulesgoverningthemovementofpersonsacross borders 1 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regardtothe Treaty establishing the EuropeanCommunity,andin particular Articles 62(1)and(2)(a)thereof, Having regardtothe proposalfromtheCommission, 2 ActinginaccordancewiththeprocedurelaiddowninArticle251oftheTreaty 3, Whereas: (1) Under Article 62(1) of the Treaty, the drafting of measures to ensure there are no border controls on persons crossing internal borders forms part of the Union's objective of establishing anarea without internal frontiers inwhichthe free movement of personsisensured,as setoutinArticle14oftheTreaty. (2) Inaccordance withArticle 61of the Treaty,the creationof anarea inwhichpersons may move freely must be flanked by other measures. The common policy on the crossing of external borders,as providedfor by Article 62(2) of the Treaty is sucha measure. (3) The adoptionof commonmeasures on the crossing of internal borders by persons and border control at external borders must reflect the Schengenacquis incorporatedin the European Union framework, and in particular the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985 4 and the CommonManual. 5 1 ES and FR entered a Parliamentary reservation. DELETED entered a general reservation. The Pres recalled that DELETED had also entered a general reservation and that DELETED had entered a scrutiny reservation. NL maintained its Parliamentary reservation. 2 OJ C […], […], p. […]. 3 OJ .... 4 OJ L 230, 22.09.2000, p. 19. 5 OJ C 313, 16.12.2002, p. 97. 5223/05 EB/cr 2 ANNEX DGH I EN (4) As regards border control at external borders, the establishment of a “common corpus” of legislation,particularly via consolidationanddevelopment of the acquis,is one of the fundamental components of the commonpolicy onthe management of the external borders, as defined in the Commission Communication of 7 May 2002 “Towards integrated management of the external borders of the Member States of the EuropeanUnion”. 6Thisobjectivewasincludedinthe“Planforthemanagementofthe external borders of the Member States of the European Union”, approved by the Council on13June 2002andendorsedby the Seville EuropeanCouncil on21and22 June2002andbytheThessalonikiEuropeanCouncilon19and20June2003. (5) The definition of common rules on the movement of persons across borders neither calls intoquestionnor affects the rights of free movement enjoyedby Unioncitizens and members of their families and by thirdcountry nationals and members of their families who,under agreements betweenthe Community andits Member States,on the one hand, and these countries, on the other, enjoy rights of free movement equivalenttothoseofUnioncitizens. (6) Border controls are in the interest not only of the States at whose external borders they are carried out but of all Member States whichhave abolished border controls at their internal borders.They must help tocombat illegal immigrationandtrafficking in humanbeings andtoprevent any threat tothe Member States' internal security,public policy,public healthand international relations.The performance of border controls must be proportionatetotheseobjectives. (7) Border control comprises not only checks onpersons at authorisedcrossing-points but alsosurveillance betweenthese crossingpoints.It is therefore necessary tolay down the conditions,criteria anddetailedarrangements governing checks at crossing-points andsurveillance. (8) Provision must be made for relaxing checks at external borders in the event of exceptionalandunforeseencircumstances. (9) To reduce the waiting times of persons enjoying the Community right to free movement,whoare usually subject only toanidentity check,separate lanes should, where circumstances permit,be providedat external border crossing-points,identified by minimum uniform indications in all Member States. Separate lanes should be providedininternational airports. (10) Member States must ensure that control procedures donot constitute a major barrier to trade andsocial andcultural interchange at external borders. Tothis endthey should deploy appropriatenumbersofstaffandresources. (11) The Member States are to appoint the national service or services responsible for border-guardtasks inaccordance withtheir national legislation.Where more thanone service is responsible in the same Member State, there must be close and constant cooperationbetweenthem. 6 COM(2002) 233 final. 5223/05 EB/cr 3 ANNEX DGH I EN (12) Operational cooperationandassistance betweenMember States inrelationtoborder control will be managed and coordinated by the “European Agency for the Management of Operational Cooperation at the External Borders of the Member States”establishedbyRegulation(EC) No.... 7 (13) Withregardtothe crossing of internal borders, border control shouldnot be carried outorformalitiesimposedsolely becausesucha borderiscrossed. (14) It must nevertheless be made clear that this Regulation is without prejudice to the checks carried out under general police powers and the security checks on persons identical tothose carried out for national flights,tothe possibilities for Member States to carry out exceptional checks on baggage in accordance with Council Regulation (EEC) No3925/91concerning the eliminationof controls andformalities applicable to the cabin and hold baggage of persons taking an intra-Community flight and the baggage of persons making an intra-Community sea crossing, 8 and to national legislation on carrying travel or identity documents or the requirement that persons notify the authorities of their presence on the territory of the Member State in question. (15) A Member State shouldalsohave the possibility of temporarily reintroducing border controls at its borders in the event of a serious threat to its public policy, internal security or public health. The conditions and procedures for doing so must be laid down,soas to guarantee the exceptional nature of the measure andthe principle of proportionality. (16) In the event of an exceptionally serious threat to public policy, internal security or public healthaffecting one or more Member States,the Council must be ina position to decide immediately to reintroduce border control at all internal borders or at specific borders of all or several Member States.The scope anddurationof the border control must berestrictedtothe bareminimumneededtorespondtothisthreat. (17) Inanarea where persons may move freely,the reintroductionof border control on persons at internal borders must remainanexceptionand,consequently,the Member State using this measure must inform the other Member States andthe Commissionin detail of the reasons prompting it tointroduce or extendthe measure for more than30 days, in order to engage in a debate and jointly to consider whether alternative measures might be possible.The informationsent must be capable of being classified as confidential or secret. The Member State that temporarily reintroduces border control must report to the other Member States, the European Parliament and the Commission once the border control has been lifted. The public must also be informedinanappropriate manner of the reintroductionof border control at internal borders and of the authorised crossing-points, save where this is precluded by the reasonsfortheirreintroduction. 7 OJ L […], […], p. […]. 8 OJ L 374, 31.12.1991, p. 4. Regulation as amended by Parliament and Council Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1). 5223/05 EB/cr 4 ANNEX DGH I EN (18) Provisionmust bemadefora procedure enablingtheCommissiontoadaptthedetailed practical rules governing bordercontrol . (19) The measures needed to implement this Regulation should be taken pursuant to Council Decision1999/468/EC of 28June 1999laying downthe procedures for the exerciseofimplementingpowersconferredonthe Commission. 9 (20) Sincetheobjectivesofthe proposedaction,namely the establishmentofrules applicabletothemovementof personsacross borders,directlyaffecttheCommunity acquisonexternalandinternal bordersandcannotthus beachievedsufficiently bythe MemberStatesactingalone,theCommunitymay adoptmeasures,inaccordancewith the principleofsubsidiarityassetoutinArticle5oftheTreaty.Inaccordancewiththe principleof proportionality,assetoutinthatArticle,thisRegulationdoesnotgo beyondwhatisnecessaryinordertoachievethisobjective. (21) This Regulationrespects fundamental rights and observes the principles recognisedin particular by the Charter of Fundamental Rights of the European Union. It will be implemented in accordance with the Member States' obligations as regards international protectionandnonrefoulement. (22) This