COUNCILOF Brussels,14April2005PUBLIC THEEUROPEANUNION 8020/05 InterinstitutionalFile: 2004/0127(COD) LIMITE FRONT 53 CODEC 255 COMIX 233 NOTE from: thePresidency to: StrategicCommitteeonImmigration,FrontiersandAsylum/MixedCommittee (EU-Iceland/Norway/Switzerland) Noprev.doc.: 7614/05FRONT39CODEC197COMIX197 No.Cionprop.: 10331/04FRONT111COMIX392(COM(2004) 391final) Subject: DraftRegulationoftheEuropeanParliamentandoftheCouncilestablishing aCommunityCodeontherulesgoverningthemovementofpersonsacross borders Delegationswillfindattachedarevisedversionoftheabove-mentioneddraftRegulation. Therecitalswill beexaminedoncethediscussionoftheArticlesisfinalised. 8020/05 EB/cr 1 DGH I EN Conseil UE ANNEX DRAFTREGULATION OFTHEEUROPEAN PARLIAMENTAND OFTHECOUNCIL establishingaCommunityCodeontherulesgoverningthemovementofpersonsacross borders 1 THEEUROPEANPARLIAMENTANDTHECOUNCILOFTHEEUROPEANUNION, Havingregardtothe Treaty establishingthe EuropeanCommunity,andin particular Articles 62(1) and(2)(a)thereof, Having regardtothe proposalfromtheCommission, 2 Actinginaccordancewiththe procedurelaiddowninArticle251oftheTreaty 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 an area without internal frontiers in which the free movement of persons is ensured,assetoutinArticle14oftheTreaty. (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 byArticle62(2) oftheTreatyissuchameasure. (3) Theadoptionofcommonmeasuresonthecrossingofinternal borders by personsand border control at external borders must reflect the Schengenacquis incorporatedinthe European Unionframework, andin particular the relevant provisions of the Conventionimplementing theSchengenAgreementof14June1985 4andtheCommonManual. 5 1 DE , ES, EL and NO maintained a general reservation on the draft Regulation. FR and HU maintained a Parliamentary reservation. DK , FI and SE maintained a scrutiny reservation. AT , FR and PT entered a linguistic 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. 8020/05 EB/cr 2 ANNEX DGH I EN (4) As regards border control at external borders,the establishment of a “commoncorpus” of legislation, particularly via consolidation and development 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”. 6 This objective was included in the “Plan for the management of the external borders of the Member States of the European Union”, approved by the Council on 13 June 2002 and endorsedby the Seville EuropeanCouncil on21and22June 2002and by the Thessaloniki EuropeanCouncilon19and20June2003. (5) The definition of common rules on the movement of persons across borders neither calls into question nor affects the rights of free movement enjoyed by Union citizens and members of their families andby thirdcountry nationals andmembers of their families who, under agreements between the Community and its Member States, on the one hand, and these countries, onthe other,enjoy rights of free movement equivalent tothose of Union citizens. (6) Border controls are inthe interest not only of the States at whose external borders they are carriedout but of all Member States which have abolishedborder controls at their internal borders.They must help tocombat illegal immigrationandtrafficking inhumanbeings and toprevent any threat tothe Member States' internal security,public order,public healthand international relations.The performance of border controls must be proportionate tothese objectives. (7) Border control comprises not only checks onpersons at authorisedcrossing-points but also surveillance between these crossingpoints. It is therefore necessary to lay down the conditions, criteria and detailed arrangements governing checks at crossing-points and surveillance. (8) Provisionmust be made for relaxing checks at external borders inthe event of exceptional andunforeseencircumstances. (9) To reduce the waiting times of persons enjoyingthe Community right to free movement, who are usually subject only to an identity check, separate lanes should, where circumstances permit,be providedatexternal border crossingpoints,identifiedbyminimum uniform indications inall Member States.Separate lanes shouldbe providedininternational airports. (10) Member States must ensure that control procedures donot constitute a major barrier totrade and social and cultural interchange at external borders. To this end they should deploy appropriatenumbersofstaffandresources. (11) The Member States are to appoint the national service or services responsible for border-guard tasks in accordance with their national legislation. Where more than one service is responsible in the same Member State, there must be close and constant cooperationbetweenthem. 6 COM(2002) 233 final. 8020/05 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” established by Regulation(EC) No.... 7 (13) Withregard tothe crossing of internal borders,border control shouldnot be carriedout or formalitiesimposedsolely becausesucha borderiscrossed. (14) It must nevertheless be made clear that this Regulationis without prejudice tothe checks carriedout under general police powers andthe security checks onpersons identical tothose carriedoutfornationalflights,tothe possibilitiesforMemberStatestocarryout exceptional checks onbaggage inaccordance withCouncil Regulation(EEC) No3925/91concerning the elimination of controls and formalities 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 territoryoftheMember Stateinquestion. (15) A Member State should also have the possibility of temporarily reintroducing border controls at its borders inthe event of a serious threat toits public order,internal security or public health. The conditions and procedures for doing so must be laid down, so as to guaranteetheexceptionalnatureofthemeasureandthe principleof proportionality. (16) In the event of an exceptionally serious threat to public order, internal security or public health affecting one or more Member States, the Council must be in a position to decide immediately toreintroduce border control at all internal borders or at specific borders of all or several Member States.The scope anddurationof the border control must be restrictedto the bareminimumneededtorespondtothisthreat. (17) Inanareawhere persons maymovefreely,thereintroductionof border controlonpersons at internal borders must remainanexceptionand,consequently,the Member State using this measure must inform the other Member States andthe Commissionindetail of the reasons prompting it tointroduce or extendthe measure for more than30days,inorder toengage in a debate and jointly to consider whether alternative measures might be possible. The informationsent must be capable of being classifiedas confidential or secret.The Member State that temporarily reintroduces border control must report tothe other Member States, the EuropeanParliament andthe Commissiononce the border control has beenlifted.The public must also be informed in an appropriate manner of the reintroduction of border controlatinternal bordersandofthe authorisedcrossing-points,savewherethisis precluded bythereasonsfortheirreintroduction. (18) Provision must be made for a procedure enabling the Commission to adapt the detailed practical rules governing bordercontrol. 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). 8020/05 EB/cr 4 ANNEX DGH I EN (19) The measures needed to implement this Regulation should be taken pursuant to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferredontheCommission. 9 (20) Sincetheobjectivesofthe proposedaction,namely the establishmentofrulesapplicableto themovementof personsacross borders,directly affecttheCommunityacquisonexternal andinternal bordersandcannotthus beachievedsufficiently bytheMemberStatesacting alone,theCommunitymay adoptmeasures,inaccordancewiththe principleofsubsidiarity assetoutinArticle5oftheTreaty.Inaccordance withthe principleof proportionality,as setoutinthatArticle,thisRegulationdoesnot gobeyondwhatisnecessaryinorderto achievethisobjective. (21) This Regulation respects fundamental rights and observes the principles recognised in 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 Regulation replaces the Common Manual and the provisions of the Convention implementing the Schengen Agreement of 14 June 1985 on the crossing of internal