179Internal border controls III of the Code concerns internal border controls.f" and Chapter I of concerns the abolition ofsuch controls.F" The first provision repeats the at the core ofthe previous Schengen Convention, that 'internal borders b . . d ' 787 crossed at any point without any checks on persons elllg carne out.: this basic rule, four types of checks are still perrnittedr'" the exercise of powers, where there is no 'effect equivalent to border checks'; security at ports and airports (if such checks also apply to movement within a ber State); the possibility to impose an obligation to hold or carry docuts; and the registration requirement set out in the freedom to travel provisions Schengen Convenrion.P" he 'police powers' exception sets out four cases 'in particular' where the cise of police powers shall not be considered equivalent to border checks."? checks do not have border control as an objective; they are based on general lice information and experience and aim 'in particular' at combating 'crossrder crime'; they are devised and executed differently from systematic checks the external borders; and they do not entail spot-checks. It is not clear if these visions are alternative or cumulative, although in any event the list is nonaustive (as is the second item on the list). Furthermore, there is no notification ransparency requirement which would assist in an assessment of whether the sare being applied correctly. It could possibly be argued, however, that the cept of a police check with an 'effect equivalent to border checks' could be erpreted as broadly as a measure having an equivalent effect to a quantitative triction on the free movement of goods.F" ()~e key question is whether police checks would infringe the Code if they carried out at or near the borders for the purposes of migration control. It is ing that there is no direct reference to this issue in this provision ofthe Code. ight of this, and since any checks carried out at or near borders for the main ose or with the main effect of migration control must surely be considered having the prohibited objective of border control (and perhaps also an effect .ivalent to an internal border check), it must follow that such checks would ate the Code. Finally, it should be noted that these police checks are not covered by the ban discriminatory conduct set out elsewhere in the Borders Code, which only lies to checks at the external borders.F" but surely it can be argued that a police ckwithin the scope of this internal borders provision which is mainly aimed hot subsequently been amended or repealed, although points 3 and 4 of this Decision are now rlyobsolete. Arts 20-31. 286 Arts 20-22. 287 Art 20. Art 21. Member States must notify the national provisions relating to the third and fourth tions to the Commission: Art 37. For these notifications, see: . Art 22 of the Convention, which has not been amended or repealed; see 4.9 below. Art 21(a). 291 See Art 28 EC (now Art 34 TFEU). 292 Art 6(2). Border Controls 3.5. Internal border controls 178 275 Art 2 of the Convention ([2000] OJ L 239/1). 276 SCH/Com-ex (94) 1 rev 2 ([2000] OJ L 239/157). 277 SCH/Com-ex (94) 29 rev 2 ([2000] OJ L 239/130). 278 SCH/Com-ex (95) 20 rev 2 ([2000] OJ L 239/133). 279 Decision 1999/436 ([1999] OJ L 176/17). However, this Council Decision stated that and (3) of the Con;,ention were without prejudice to Art 64(1) EC (now Art 72 TFEU), out Member States responsibilinex as regards law, order, and security. On the interI,reltati.o!1 provrsion, see 3.2.4 above. Furthermore, Art 2(4) ofthe Convention was not dWJcaLeLIanv iezar oas because it was believed to be obsolete (see Decision 1999/435, [1999] OJ L 176/1). 280 See K Groenendijk,. 'New Borders Behind Old Ones: Post Schengen the Internal Borders-InsIde the Netherlands and Germany' in E Guild P Mi:ndedloud, K Groenendijk, eds, In Search ofEurope's Borders (Kluwer, 2(03) 131. ' 281 See K Groenendijk, 'Reinstatement of Controls at the Internal Borders _c~.. _ .... Against Whom?' (2004) 10 ELJ 150, and generally the second edition of this book at 282 See: JHA Council conclusions (JHA Council press release, July 2(01); a securiry for police use at such events (Council doc 12637/3/02, 12 Nov 2(02); and a Resolution at European Councils ([2004] OJ C 116/18). See further 12.7 below. 283 Reg 562/2006 ([2006] OJ L 105/1), Art 40. On the external borders provisions, see All references m the rest of this section are to the Borders Code Reg, unless otherwise 284 Art 39(1) and 2(b) of the Code. The Decision which was not repealed was (94) 29 rev 2 (n 277 above), settmg out rules concerning the initial application of the Conventio The EU rules on the abolition of internal border controls, including a to reintroduce those controls, were initially set out, as mentioned above, Schengen Convention.r" This provision ofthe Convention was also lITlplenlerlfe by three Decisions adopted by the Schengen Executive Committee, which cerned the issues of: obstacles to traffic flOWS;276 bringing the Convention force;277 and procedures for reintroducing border checks.>" The relevant sion of the Schengen Convention and the three Executive Committee were then integrated into the legal order ofthe EC (as it then was) with the rnto force ofthe Treaty ofAmsterdam; all were attributed the legal base VLLHq" 62(1) EC (now Article 77(2)(e) TFEU).279 Research on the application of the Schengen Convention in two States indicated that following the abolition of internal controls, the powers of 'internal' border guard forces were increased considerably.P" the power to reintroduce controls was frequently invoked, in particular context of planned large-scale demonstrations at EU summit meetings. Council even adopted measures on this issue, which in particular provided exchange ofinformation on alleged troublemakers, with the aim effect ofre-imposed internal border controls by means of targeted po,hcln,g. As from 13 October 2006, the basic rules regulating the abolition ~.,_,.~,_.'border controls derive from the Regulation establishing the Schengen Code, which also sets out common rules on external border control.283 replaced the relevant provision ofthe Schengen Convention and two Executive Committee Decisions.P" 179Internal border controls III of the Code concerns internal border controls.f" and Chapter I of concerns the abolition ofsuch controls.F" The first provision repeats the at the core ofthe previous Schengen Convention, that 'internal borders b . . d ' 787 crossed at any point without any checks on persons elllg carne out.: this basic rule, four types of checks are still perrnittedr'" the exercise of powers, where there is no 'effect equivalent to border checks'; security at ports and airports (if such checks also apply to movement within a ber State); the possibility to impose an obligation to hold or carry docuts; and the registration requirement set out in the freedom to travel provisions Schengen Convenrion.P" he 'police powers' exception sets out four cases 'in particular' where the cise of police powers shall not be considered equivalent to border checks."? checks do not have border control as an objective; they are based on general lice information and experience and aim 'in particular' at combating 'crossrder crime'; they are devised and executed differently from systematic checks the external borders; and they do not entail spot-checks. It is not clear if these visions are alternative or cumulative, although in any event the list is nonaustive (as is the second item on the list). Furthermore, there is no notification ransparency requirement which would assist in an assessment of whether the sare being applied correctly. It could possibly be argued, however, that the cept of a police check with an 'effect equivalent to border checks' could be erpreted as broadly as a measure having an equivalent effect to a quantitative triction on the free movement of goods.F" ()~e key question is whether police checks would infringe the Code if they carried out at or near the borders for the purposes of migration control. It is ing that there is no direct reference to this issue in this provision ofthe Code. ight of this, and since any checks carried out at or near borders for the main ose or with the main effect of migration control must surely be considered having the prohibited objective of border control (and perhaps also an effect .ivalent to an internal border check), it must follow that such checks would ate the Code. Finally, it should be noted that these police checks are not covered by the ban discriminatory conduct set out elsewhere in the Borders Code, which only lies to checks at the external borders.F" but surely it can be argued that a police ckwithin the scope of this internal borders provision which is mainly aimed hot subsequently been amended or repealed, although points 3 and 4 of this Decision are now rlyobsolete. Arts 20-31. 286 Arts 20-22. 287 Art 20. Art 21. Member States must notify the national provisions relating to the third and fourth tions to the Commission: Art 37. For these notifications, see: . Art 22 of the Convention, which has not been amended or repealed; see 4.9 below. Art 21(a). 291 See Art 28 EC (now Art 34 TFEU). 292 Art 6(2). Border Controls 3.5. Internal border controls 178 275 Art 2 of the Convention ([2000] OJ L 239/1). 276 SCH/Com-ex (94) 1 rev 2 ([2000] OJ L 239/157). 277 SCH/Com-ex (94) 29 rev 2 ([2000] OJ L 239/130). 278 SCH/Com-ex (95) 20 rev 2 ([2000] OJ L 239/133). 279 Decision 1999/436 ([1999] OJ L 176/17). However, this Council Decision stated that and (3) of the Con;,ention were without prejudice to Art 64(1) EC (now Art 72 TFEU), out Member States responsibilinex as regards law, order, and security. On the interI,reltati.o!1 provrsion, see 3.2.4 above. Furthermore, Art 2(4) ofthe Convention was not dWJcaLeLIanv iezar oas because it was believed to be obsolete (see Decision 1999/435, [1999] OJ L 176/1). 280 See K Groenendijk,. 'New Borders Behind Old Ones: Post Schengen the Internal Borders-InsIde the Netherlands and Germany' in E Guild P Mi:ndedloud, K Groenendijk, eds, In Search ofEurope's Borders (Kluwer, 2(03) 131. ' 281 See K Groenendijk, 'Reinstatement of Controls at the Internal Borders _c~.. _ .... Against Whom?' (2004) 10 ELJ 150, and generally the second edition of this book at 282 See: JHA Council conclusions (JHA Council press release, July 2(01); a securiry for police use at such events (Council doc 12637/3/02, 12 Nov 2(02); and a Resolution at European Councils ([2004] OJ C 116/18). See further 12.7 below. 283 Reg 562/2006 ([2006] OJ L 105/1), Art 40. On the external borders provisions, see All references m the rest of this section are to the Borders Code Reg, unless otherwise 284 Art 39(1) and 2(b) of the Code. The Decision which was not repealed was (94) 29 rev 2 (n 277 above), settmg out rules concerning the initial application of the Conventio The EU rules on the abolition of internal border controls, including a to reintroduce those controls, were initially set out, as mentioned above, Schengen Convention.r" This provision ofthe Convention was also lITlplenlerlfe by three Decisions adopted by the Schengen Executive Committee, which cerned the issues of: obstacles to traffic flOWS;276 bringing the Convention force;277 and procedures for reintroducing border checks.>" The relevant sion of the Schengen Convention and the three Executive Committee were then integrated into the legal order ofthe EC (as it then was) with the rnto force ofthe Treaty ofAmsterdam; all were attributed the legal base VLLHq" 62(1) EC (now Article 77(2)(e) TFEU).279 Research on the application of the Schengen Convention in two States indicated that following the abolition of internal controls, the powers of 'internal' border guard forces were increased considerably.P" the power to reintroduce controls was frequently invoked, in particular context of planned large-scale demonstrations at EU summit meetings. Council even adopted measures on this issue, which in particular provided exchange ofinformation on alleged troublemakers, with the aim effect ofre-imposed internal border controls by means of targeted po,hcln,g. As from 13 October 2006, the basic rules regulating the abolition ~.,_,.~,_.'border controls derive from the Regulation establishing the Schengen Code, which also sets out common rules on external border control.283 replaced the relevant provision ofthe Schengen Convention and two Executive Committee Decisions.P" 181Internal border controls C-188/10 and C-189/10 lvIelki and Abdeli, judgment of 22 June 2010, not yet there is no change from the previous rules (point 3 ofSCH/Com-ex (95) 20). Most of these provisions are new as compared to the previous rules, procedure for prolonging controls, it simply requires the application of the acedure for reintroducing controls.l?' Title In of the Code contains provisions on: informing the EP of on reintroduced controls (and reporting to the EP following the third nsecutrve extension ofreintroduced controls); clarifying that the external borwill apply when internal border checks are reintroduced; requiring when internal border controls are lifted, outlining the operation of rnternal checks and their effectiveness; requiring information to the public re:int:roduced controls unless there are overriding security reasons to the and requiring the EU institutions and other Member States to respect ccnfidentiality of information submitted by a Member State at its request.t'" Commission was obliged to report on the application of Title III of by October 2009;303 the report was to 'pay particular attention to any arising from the reintroduction of border control at internal borders' appropriate] ... present proposals aimed at resolving such difficulties'. t...;()m,mlSSJlOn has not yet issued this report. it should be recalled when considering the issue ofinternal border that until the entry into force of the Treaty of Lisbon, according to the 68(2) EC, the Court ofJustice did not have 'jurisdiction to rule on measure or decision taken pursuant to Article 62(1) [which conferred powers measures concerning internal borders] relating to the maintenance of order and the safeguarding ofinternal security'. This in effect prevented ofJustice from ruling on the validity of the reintroduction of internal controls by any Member State. After this limit on its jurisdiction has been was not long before the Court ofJustice was asked to interpret the rules border conrrols.i''" In the Melki and Abdelijudgment, it criticized the practice for police controls behind the internal borders, in particular national law in question 'contains neither further details nor limitathe power thus conferred-in particular in relation to the intensity and of the controls which may be carried out on that legal basis-for the preventing the practical application of that power, by the competent from leading to controls with an effect equivalent to border checks'. with the limitations in the Borders Code, national law 'granting a authorities to carry out identity checks-a power which, first, is the border area of the Member State with other Member States and, not depend upon the behaviour of the person checked or on specific mstances giving rise to a risk of breach of public order-must provide the Border Controls180 at non-white people falls nonetheless within the scope ofthe principle which is protected as a general principle ofEU law. Next, Member States are obliged to remove road-traffic obstacles at the nal borders, including any unjustified special speed limits, but nonetheless must be 'prepared to provide for facilities' to reintroduce internal border if necessary.293 Chapter II of Title III of the Borders Code concerns the reintroduction internal border controls by a Member State.?" The basic rule is that a State can 'exceptionally' reintroduce border controls for up to thirty days, a longer period if the duration of the relevant event is foreseeable, in the of a serious threat to public policy or to internal security'; but the duration' of the reintroduced checks 'shall not exceed what is strictly nece to respond to the reintroduced checksF" The reintroduction of controls continued for further renewable periods ofup to thirty days, 'taking into any new elements'r'" Compared to the previous Schengen Convention the threshold for reintroduction of checks is higher, the time period is cisely specified and the necessity rule is stricter. The basic rule is supplemented by more specific rules, depending the reintroduction of border checks is foreseeable or urgent. First of the reintroduction of controls is foreseeable,298 Member States must Commission and other Member States 'as soon as possible' ofits plans to duce controls, and provide information 'as soon as available' on the and the scope ofthe reintroduction ofcontrols, the authorized crossing points date and duration of the introduction, and (if relevant) the measures by other Member States. The Commission may issue an opinion on the reintroduction, and there shall be consultation on the planned controls the Member States and the Commission in order to discuss the proportionalir the controls and possibly also 'mutual cooperation between the Member These rules were a change from the previous procedures as regards the Commission (which had no role at all previously), the date of the COnS1J!t;ltJ (at least fifteen days before the reintroduction of controls), and the requirer to discuss the proportionality of the planned controls.299 Secondly, in the event that 'urgent action' is required, Member reintroduce controls without prior notification, provided that information is sent to the Commission and other Member States 293 Art 22. This clause took over the gist of Schengen Executive Committee above), which was repealed, 295 Art 23(1). 296 Art 23(2). 297 Art 2(2) of the Convention, repealed by the Borders Code. 298 Art 24. 299 Compare to point 1 ofSCH/Com-ex (95) 20 (n 278 above), which has Code, 300 Art 25, There is no change from the previous rules (point 2 ofSCH/Com-ex 181Internal border controls C-188/10 and C-189/10 lvIelki and Abdeli, judgment of 22 June 2010, not yet there is no change from the previous rules (point 3 ofSCH/Com-ex (95) 20). Most of these provisions are new as compared to the previous rules, procedure for prolonging controls, it simply requires the application of the acedure for reintroducing controls.l?' Title In of the Code contains provisions on: informing the EP of on reintroduced controls (and reporting to the EP following the third nsecutrve extension ofreintroduced controls); clarifying that the external borwill apply when internal border checks are reintroduced; requiring when internal border controls are lifted, outlining the operation of rnternal checks and their effectiveness; requiring information to the public re:int:roduced controls unless there are overriding security reasons to the and requiring the EU institutions and other Member States to respect ccnfidentiality of information submitted by a Member State at its request.t'" Commission was obliged to report on the application of Title III of by October 2009;303 the report was to 'pay particular attention to any arising from the reintroduction of border control at internal borders' appropriate] ... present proposals aimed at resolving such difficulties'. t...;()m,mlSSJlOn has not yet issued this report. it should be recalled when considering the issue ofinternal border that until the entry into force of the Treaty of Lisbon, according to the 68(2) EC, the Court ofJustice did not have 'jurisdiction to rule on measure or decision taken pursuant to Article 62(1) [which conferred powers measures concerning internal borders] relating to the maintenance of order and the safeguarding ofinternal security'. This in effect prevented ofJustice from ruling on the validity of the reintroduction of internal controls by any Member State. After this limit on its jurisdiction has been was not long before the Court ofJustice was asked to interpret the rules border conrrols.i''" In the Melki and Abdelijudgment, it criticized the practice for police controls behind the internal borders, in particular national law in question 'contains neither further details nor limitathe power thus conferred-in particular in relation to the intensity and of the controls which may be carried out on that legal basis-for the preventing the practical application of that power, by the competent from leading to controls with an effect equivalent to border checks'. with the limitations in the Borders Code, national law 'granting a authorities to carry out identity checks-a power which, first, is the border area of the Member State with other Member States and, not depend upon the behaviour of the person checked or on specific mstances giving rise to a risk of breach of public order-must provide the Border Controls180 at non-white people falls nonetheless within the scope ofthe principle which is protected as a general principle ofEU law. Next, Member States are obliged to remove road-traffic obstacles at the nal borders, including any unjustified special speed limits, but nonetheless must be 'prepared to provide for facilities' to reintroduce internal border if necessary.293 Chapter II of Title III of the Borders Code concerns the reintroduction internal border controls by a Member State.?" The basic rule is that a State can 'exceptionally' reintroduce border controls for up to thirty days, a longer period if the duration of the relevant event is foreseeable, in the of a serious threat to public policy or to internal security'; but the duration' of the reintroduced checks 'shall not exceed what is strictly nece to respond to the reintroduced checksF" The reintroduction of controls continued for further renewable periods ofup to thirty days, 'taking into any new elements'r'" Compared to the previous Schengen Convention the threshold for reintroduction of checks is higher, the time period is cisely specified and the necessity rule is stricter. The basic rule is supplemented by more specific rules, depending the reintroduction of border checks is foreseeable or urgent. First of the reintroduction of controls is foreseeable,298 Member States must Commission and other Member States 'as soon as possible' ofits plans to duce controls, and provide information 'as soon as available' on the and the scope ofthe reintroduction ofcontrols, the authorized crossing points date and duration of the introduction, and (if relevant) the measures by other Member States. The Commission may issue an opinion on the reintroduction, and there shall be consultation on the planned controls the Member States and the Commission in order to discuss the proportionalir the controls and possibly also 'mutual cooperation between the Member These rules were a change from the previous procedures as regards the Commission (which had no role at all previously), the date of the COnS1J!t;ltJ (at least fifteen days before the reintroduction of controls), and the requirer to discuss the proportionality of the planned controls.299 Secondly, in the event that 'urgent action' is required, Member reintroduce controls without prior notification, provided that information is sent to the Commission and other Member States 293 Art 22. This clause took over the gist of Schengen Executive Committee above), which was repealed, 295 Art 23(1). 296 Art 23(2). 297 Art 2(2) of the Convention, repealed by the Borders Code. 298 Art 24. 299 Compare to point 1 ofSCH/Com-ex (95) 20 (n 278 above), which has Code, 300 Art 25, There is no change from the previous rules (point 2 ofSCH/Com-ex 3.6. External border controls: basic rules 183External border controls: basic rules 2-8 of the Convention and Schengen Executive Committee Decisions Sch/Com-ex and Sch/Com-ex (98) 1 were allocated to Art 62(2)(a) EC (now Art 77(2)(b) TFEU), except 7 of the Convention, which was allocated to Art 66 EC (now Art 74 TFEU), and Art 4 of Convention which was not allocated at all due to obsolescence. The Common Manual was to Art 62 and 63 EC (now Arts 77-79 TFEU). See the Council Decisions on the definition allocation of the acquis (1999/435 and 1999/436, [1999] OJ L 176/1 and 17). respectively [2004] OJ L 261/119 and Reg 2133/2004, [2004] OJ L 369/5. The Regulation inserted two new provisions into the Schengen Convention (Arts 6a and 6b) and amended of the Convention, while the Decision inter alia amended Sch/Com-ex (94) 17 (n 309 312 Reg 79012001, [2001] OJ L 116/5. C-257/01 Commission v Council [2005] ECR 1-345. first two amendments ([2002] OJ L 123/47 and [2002] OJ L 187/50) made 'housekeeping' the third amendment increased checks on minors ([2004] OJ L 157/36); and the fourth introduced a common form to be used when refusing entry at the border ([2004] OJ L 315 Art 3 ofReg 213312004 (n 311 above). 7(2) of Reg 53912001 ([2001] OJ L 81/3); Art 2 of Reg 33412002 ([2002] OJ L 53/7); and (3) ofReg 41512003 ([2003] OJ L 64/1); and Art 11(2) ofReg 69312003 ([2003] OJ L the substance ofthese measures, see 4.5-4.7 below. 1(2), (4), and (5) ofDecision 2001/329 ([2001] OJ L 116/32); Art 3 of Decision 2001/420 OJ L 150/47); Art 2 ofDecision 2002/44 ([2002] OJ L 20/5); the Decision on fees for convisa applications ([2003] OJ L 152/82); Decisions 2003/585 and 2003/586 on transit visa ([2003] OJ L 198/13 and 15); Art 2 of Decision 2004/17 on travel medical insurance ([2004] OJ L 5/79); and the June 2006 Decision on visa fees ([2006] OJ L 175/77). On substance of these measures, see 4.7.1 below. Following the integration of the Schengen acquis into the EC and EU legal der, in accordance with the Treaty ofAmsterdam,310 these measures were supemented by EC acts, in particular a Decision concerning border signs and a egulation on the stamping ofdocuments.:'!' Furthermore, the Council adopted 2001 a Regulation which conferred upon itself (and Member States) the ()wer to amend the Common Manual.312 A challenge to this measure by the ommission before the Court ofJustice (on the grounds that the Council had t adequately explained why it conferred those implementing powers upon If whereas the normal rule is to confer them on the Commission) was unsucsful. 313 This Regulation was used to amend the Common Manual on several casions, in particular to add a standard form for refusing entry and the border.314 e Manual was also amended on several other occasions: by the EU's borders islarion.P" by legislative acts concerning visas.?" as well as incidentally when Council amended the basic rules governing the procedure for visa applica(the Common Consular Instructionsj.t'" 2006, the various measures setting out the basic rules governing external controls were all integrated and amended in the form of the Regulation ~bl]ISh]mg the Schengen Borders Code. The next major development in this be the development of an entry-exit system, ie a system which stores information on the movements of each third-country national across the borders. These two issues will be considered in turn. Of course, these should be seen in the broader context of the other measures discussed BorderControls182 necessary framework for the power granted to those authorities in order, alia, to guide the discretion which those authorities enjoy in the practical cation ofthat power. That framework must guarantee that the practical of that power, consisting in carrying out identity controls, cannot have equivalent to border checks'. In practice, it appears that border controls were reintroduced about seventee times from the application date ofthe Borders Code until June 2010.305 The majority ofcases concerned some form ofpolitical meeting (for instance, and G8 summits, and the Copenhagen conference on climate change). the reports on these reintroductions of controls are not available, but some available reports.i'" Since many ofthe required reports on the reintroduction ofborder controls individual cases are not available, and since the Commission has not proauc:ea report on the internal borders rules, it is difficult to ascertain whether the Code has had any impact on this issue. It is striking, however, that controls apparently reintroduced more frequently in 2009 and 2010 than in years. One might surmise that the older Member States feel less secure enlargement of the Schengen zone. Like the rules on the abolition ofinternal border controls, the basic rules ~L'U'>LLU", nized external border controls were initially set out in the Schengen Convention, along with measures adopted by the Schengen Executive Committee, particujarr a Common Manual for use by border control authorities.s'" along with Decisions of the Schengen Executive Commitree.v" 30S Council does: 13837/06, 11 o« 2006; 15332/06, 15 Nov 2006; 6084/07,7 Feb 2007; 30 May 2008; 13603/08, 1 Oct 2008; 7725/09, 18 Mar 2009; 7501/09, 20 Mar 2009; 25 June 2009; 13613/09, 24 Oct 2009; 13913/09, 1 Oct 2009; 13979/09, 2 Oct 2009; 20 Nov 2009; 16911/09, 1 Dec 2009; 7899/10, 23 Mar 2010; 8580/10,15 Apr 2010; 2010; and 8584/10, add 1, 27 May 2010. 306 For instance, see the report by Austria regarding reintroduction of controls during European football championships (Council doc 15185/08, 5 Nov 2008). 307 Arts 3-8 of the Convention ([2000] OJ L 239/1). On the provisions of the Schengen regarding internal borders, see 3.5 above. For more detail on the measures concerrnng border controls in force before the adoption ofthe Schengen Borders Code, see the of this book, at 135-139. '~C'V"UCU""~" 308 The Manual (asconsolidated in Schengen Executive Committee Decision Sch/Com-ex was initially classified, but was subsequently mostly declassified (see Decisions in [2000] and [2002] OJ L 123/49). It was published in [2002] OJ C 313/97. 309 These were Sch/Com-ex (94) 17 on introducing the Schengen system and """ ,-~v,,',-c,,<. 1 on the activities ofa task force ([2000] OJ L 239/168 and 191). 3.6. External border controls: basic rules 183External border controls: basic rules 2-8 of the Convention and Schengen Executive Committee Decisions Sch/Com-ex and Sch/Com-ex (98) 1 were allocated to Art 62(2)(a) EC (now Art 77(2)(b) TFEU), except 7 of the Convention, which was allocated to Art 66 EC (now Art 74 TFEU), and Art 4 of Convention which was not allocated at all due to obsolescence. The Common Manual was to Art 62 and 63 EC (now Arts 77-79 TFEU). See the Council Decisions on the definition allocation of the acquis (1999/435 and 1999/436, [1999] OJ L 176/1 and 17). respectively [2004] OJ L 261/119 and Reg 2133/2004, [2004] OJ L 369/5. The Regulation inserted two new provisions into the Schengen Convention (Arts 6a and 6b) and amended of the Convention, while the Decision inter alia amended Sch/Com-ex (94) 17 (n 309 312 Reg 79012001, [2001] OJ L 116/5. C-257/01 Commission v Council [2005] ECR 1-345. first two amendments ([2002] OJ L 123/47 and [2002] OJ L 187/50) made 'housekeeping' the third amendment increased checks on minors ([2004] OJ L 157/36); and the fourth introduced a common form to be used when refusing entry at the border ([2004] OJ L 315 Art 3 ofReg 213312004 (n 311 above). 7(2) of Reg 53912001 ([2001] OJ L 81/3); Art 2 of Reg 33412002 ([2002] OJ L 53/7); and (3) ofReg 41512003 ([2003] OJ L 64/1); and Art 11(2) ofReg 69312003 ([2003] OJ L the substance ofthese measures, see 4.5-4.7 below. 1(2), (4), and (5) ofDecision 2001/329 ([2001] OJ L 116/32); Art 3 of Decision 2001/420 OJ L 150/47); Art 2 ofDecision 2002/44 ([2002] OJ L 20/5); the Decision on fees for convisa applications ([2003] OJ L 152/82); Decisions 2003/585 and 2003/586 on transit visa ([2003] OJ L 198/13 and 15); Art 2 of Decision 2004/17 on travel medical insurance ([2004] OJ L 5/79); and the June 2006 Decision on visa fees ([2006] OJ L 175/77). On substance of these measures, see 4.7.1 below. Following the integration of the Schengen acquis into the EC and EU legal der, in accordance with the Treaty ofAmsterdam,310 these measures were supemented by EC acts, in particular a Decision concerning border signs and a egulation on the stamping ofdocuments.:'!' Furthermore, the Council adopted 2001 a Regulation which conferred upon itself (and Member States) the ()wer to amend the Common Manual.312 A challenge to this measure by the ommission before the Court ofJustice (on the grounds that the Council had t adequately explained why it conferred those implementing powers upon If whereas the normal rule is to confer them on the Commission) was unsucsful. 313 This Regulation was used to amend the Common Manual on several casions, in particular to add a standard form for refusing entry and the border.314 e Manual was also amended on several other occasions: by the EU's borders islarion.P" by legislative acts concerning visas.?" as well as incidentally when Council amended the basic rules governing the procedure for visa applica(the Common Consular Instructionsj.t'" 2006, the various measures setting out the basic rules governing external controls were all integrated and amended in the form of the Regulation ~bl]ISh]mg the Schengen Borders Code. The next major development in this be the development of an entry-exit system, ie a system which stores information on the movements of each third-country national across the borders. These two issues will be considered in turn. Of course, these should be seen in the broader context of the other measures discussed BorderControls182 necessary framework for the power granted to those authorities in order, alia, to guide the discretion which those authorities enjoy in the practical cation ofthat power. That framework must guarantee that the practical of that power, consisting in carrying out identity controls, cannot have equivalent to border checks'. In practice, it appears that border controls were reintroduced about seventee times from the application date ofthe Borders Code until June 2010.305 The majority ofcases concerned some form ofpolitical meeting (for instance, and G8 summits, and the Copenhagen conference on climate change). the reports on these reintroductions of controls are not available, but some available reports.i'" Since many ofthe required reports on the reintroduction ofborder controls individual cases are not available, and since the Commission has not proauc:ea report on the internal borders rules, it is difficult to ascertain whether the Code has had any impact on this issue. It is striking, however, that controls apparently reintroduced more frequently in 2009 and 2010 than in years. One might surmise that the older Member States feel less secure enlargement of the Schengen zone. Like the rules on the abolition ofinternal border controls, the basic rules ~L'U'>LLU", nized external border controls were initially set out in the Schengen Convention, along with measures adopted by the Schengen Executive Committee, particujarr a Common Manual for use by border control authorities.s'" along with Decisions of the Schengen Executive Commitree.v" 30S Council does: 13837/06, 11 o« 2006; 15332/06, 15 Nov 2006; 6084/07,7 Feb 2007; 30 May 2008; 13603/08, 1 Oct 2008; 7725/09, 18 Mar 2009; 7501/09, 20 Mar 2009; 25 June 2009; 13613/09, 24 Oct 2009; 13913/09, 1 Oct 2009; 13979/09, 2 Oct 2009; 20 Nov 2009; 16911/09, 1 Dec 2009; 7899/10, 23 Mar 2010; 8580/10,15 Apr 2010; 2010; and 8584/10, add 1, 27 May 2010. 306 For instance, see the report by Austria regarding reintroduction of controls during European football championships (Council doc 15185/08, 5 Nov 2008). 307 Arts 3-8 of the Convention ([2000] OJ L 239/1). On the provisions of the Schengen regarding internal borders, see 3.5 above. For more detail on the measures concerrnng border controls in force before the adoption ofthe Schengen Borders Code, see the of this book, at 135-139. '~C'V"UCU""~" 308 The Manual (asconsolidated in Schengen Executive Committee Decision Sch/Com-ex was initially classified, but was subsequently mostly declassified (see Decisions in [2000] and [2002] OJ L 123/49). It was published in [2002] OJ C 313/97. 309 These were Sch/Com-ex (94) 17 on introducing the Schengen system and """ ,-~v,,',-c,,<. 1 on the activities ofa task force ([2000] OJ L 239/168 and 191). 3.6.1. Schengen Borders Code in this chapter, concerning passport security, the Schengen Information and the EU's border agency, Frontex. 185External border controls: basic rules drscretion, but there is nevertheless an obligation for Member States to inform the C()rrlillLIS~;Ion ofthese decisions; the Commission must then inform the public.Y' Commission has also drawn up a Recommendation containing practical information for border guards.?" Moving on to the content of the Schengen Borders Code, it comprises forty pJrIll:les in four Titles, with (as noted already) eight attached Annexes.?" Title I out the purpose of the Regulation, along with rules on definitions and the of the Code.P? It is specified that while the Regulation applies 'to any crossing the internal or external borders of Member States', it is 'without .prejudice to' the rights of persons enjoying EU free movement rights or to 'the ofrefugees and persons requesting international protection, in particular as non-refouleruenr'i" I The first of these categories follows from the priorof EU free movement law over Schengen rules,332 while the latter arguably from the general principles of EU law. 333 Moreover, the Code does not the issue ofrules on local border traffic, which was the subject ofseparate l~~~lsjatIon adopted some months later.334 II ofthe Code, which contains three Chapters.I" sets out the main rules C9noerrllnlg external borders. Chapter I comprises two Articles, which set out the rules concerning crossing external borders and the conditions for at the external borders.F" Borders must be crossed at official points durofficial hours.P? and notice of opening hours must be provided. Derogations be permitted for pleasure shipping or coastal fishingr'" seamen under cerconditions; individuals or groups where there is a 'requirement of a special (subject to certain conditions); or individuals or groups in an unforeseen eUIer'gency 339 Penalties must be imposed by Member States for breach ofthe oblito cross at official points; these penalties shall be 'effective, proportionate dissuasive', and this obligation is 'without prejudice to ... [Member States'] aternational protection obligations'P'" These two express provisions respectively C(2006) 5186, reprodnced in Council doc 15010/06, 9 Nov 2006, amended by C(2008) 2976, eproduced in Council doc 11253/08, 30 June 2008, III of the Code solely concerus the abolition ofinternal border controls, and was consid- 3,5 above. Title IV solely sets out final provisions, and is not considered separately, 1-3, 331 Art 3. The former group is defined in Art 2(5). the former Art 134 of the Schengen Convention, which was not integrated within the framework (Decision 1999/435, n 310 above); the Schengen Protocol; and Case C-503/03 ECR 1-1097, See also 3.4,1 above, Compare to the former Art 135 ofthe Schengen Convention, which was not integrated within framework (see Decision 1999/435, ibid), 35; see Reg 193112006 ([2006] OJ L 405/1), discussed in 3,8 below, 4-19, 336 Arts 4 and 5, States must notify their border crossing points to the Commission (Art 34(1)(b)), definitions of these concepts, see Art 2(17) and (18), 339 Art 4(2), Art 4(3). Member States must notify these penalties to the Commission (Art 37), Border Controls184 3(8 Reg 56212006 ([2006] OJ L 105/1), All further references in this section are to the Code Reg, unless otherwise indicated, 319 320 Arts 23-31 of the Code; see 3,5 above, 321 Art 39, More precisely, Sch/Com-ex (94) 17 was repealed, but Sch/Com-ex (98) 1 lnHdlH"~ in force (for both, see n 310 above), The latter Decision has not been amended or repealed, provisions relating to the abolition ofinternal border controls were also deleted: see 3,5 the Code deleted Annex 7 to the Common Consular Instructions (on which, see 4,7,1 122 Firstly, Reg 296/2008 ([2008] OJ L 97/60) regarding 'comitology', amended Arts and 33, Secondly, Reg 8112009, regarding the use ofthe Visa Information System at borders OJ L 35/56), amended Art 7(3), Thirdly, Art 55 ofthe visa code (Reg 81012009, [2009] OJ L amended Annex V. Finally, Reg 265/2010 ([2010] OJ L 85/1) amended Arts 5(1)(b) and Code has not been consolidated, 323 See the Commission's 2010 work programme COM (2010) 135,31 Mar 2010, On exit plans, see further 3,6,2 below, 324 Arts 12(5), 32, and 33, as amended by Reg 29612008 (n 322 above), The implementing poers concern Annexes Ill, IV, and VIII, which concern signs for separate lanes at stamping oftravel documents, and proof that the border has been crossed without travel being stamped, 325 See 2,2,2,1 and 326 [2010] OJ L 111120, The legality of this measure has been challenged, on the the Council exceeded its powers to implement the Regulation when adopting it: EP v Council, pending, The Schengen Borders Code,31H which applied from 13 October 2006,319 integrated and amended all the previous rules concerning internal UUIU"D. As regards external borders, the Code repealed the relevant provisions Schengen Convention; one Schengen Executive Committee Decision; Common Manual (as amended by EC measures); and the legislation on der signs; the stamping of documents; and the power to amend the Common Manual.V' Subsequently, the Code has been amended on four occasions.V' Commission plans further amendments, pursuant inter alia to planned Iegislatior; on an entry-exit systern.Y' The Code confers powers upon the Commission to adopt implementing ures as regards three of its eight attached Annexes; the Commission can adopt implementing measures as regards border surveillance.I" All these ures are subject to the 'regulatory procedure with scrutiny', which entails scrutiny power for the EP; this process will likely be replaced by the acts' procedure introduced by the Treaty ofLisbon at some point.I" To date, implementing measure has been adopted, regarding maritime surveillance the discussion below).326 Certain decisions relating to external border crossing (such as the penalties crossing at unauthorized points or times) have been left to the Member 3.6.1. Schengen Borders Code in this chapter, concerning passport security, the Schengen Information and the EU's border agency, Frontex. 185External border controls: basic rules drscretion, but there is nevertheless an obligation for Member States to inform the C()rrlillLIS~;Ion ofthese decisions; the Commission must then inform the public.Y' Commission has also drawn up a Recommendation containing practical information for border guards.?" Moving on to the content of the Schengen Borders Code, it comprises forty pJrIll:les in four Titles, with (as noted already) eight attached Annexes.?" Title I out the purpose of the Regulation, along with rules on definitions and the of the Code.P? It is specified that while the Regulation applies 'to any crossing the internal or external borders of Member States', it is 'without .prejudice to' the rights of persons enjoying EU free movement rights or to 'the ofrefugees and persons requesting international protection, in particular as non-refouleruenr'i" I The first of these categories follows from the priorof EU free movement law over Schengen rules,332 while the latter arguably from the general principles of EU law. 333 Moreover, the Code does not the issue ofrules on local border traffic, which was the subject ofseparate l~~~lsjatIon adopted some months later.334 II ofthe Code, which contains three Chapters.I" sets out the main rules C9noerrllnlg external borders. Chapter I comprises two Articles, which set out the rules concerning crossing external borders and the conditions for at the external borders.F" Borders must be crossed at official points durofficial hours.P? and notice of opening hours must be provided. Derogations be permitted for pleasure shipping or coastal fishingr'" seamen under cerconditions; individuals or groups where there is a 'requirement of a special (subject to certain conditions); or individuals or groups in an unforeseen eUIer'gency 339 Penalties must be imposed by Member States for breach ofthe oblito cross at official points; these penalties shall be 'effective, proportionate dissuasive', and this obligation is 'without prejudice to ... [Member States'] aternational protection obligations'P'" These two express provisions respectively C(2006) 5186, reprodnced in Council doc 15010/06, 9 Nov 2006, amended by C(2008) 2976, eproduced in Council doc 11253/08, 30 June 2008, III of the Code solely concerus the abolition ofinternal border controls, and was consid- 3,5 above. Title IV solely sets out final provisions, and is not considered separately, 1-3, 331 Art 3. The former group is defined in Art 2(5). the former Art 134 of the Schengen Convention, which was not integrated within the framework (Decision 1999/435, n 310 above); the Schengen Protocol; and Case C-503/03 ECR 1-1097, See also 3.4,1 above, Compare to the former Art 135 ofthe Schengen Convention, which was not integrated within framework (see Decision 1999/435, ibid), 35; see Reg 193112006 ([2006] OJ L 405/1), discussed in 3,8 below, 4-19, 336 Arts 4 and 5, States must notify their border crossing points to the Commission (Art 34(1)(b)), definitions of these concepts, see Art 2(17) and (18), 339 Art 4(2), Art 4(3). Member States must notify these penalties to the Commission (Art 37), Border Controls184 3(8 Reg 56212006 ([2006] OJ L 105/1), All further references in this section are to the Code Reg, unless otherwise indicated, 319 320 Arts 23-31 of the Code; see 3,5 above, 321 Art 39, More precisely, Sch/Com-ex (94) 17 was repealed, but Sch/Com-ex (98) 1 lnHdlH"~ in force (for both, see n 310 above), The latter Decision has not been amended or repealed, provisions relating to the abolition ofinternal border controls were also deleted: see 3,5 the Code deleted Annex 7 to the Common Consular Instructions (on which, see 4,7,1 122 Firstly, Reg 296/2008 ([2008] OJ L 97/60) regarding 'comitology', amended Arts and 33, Secondly, Reg 8112009, regarding the use ofthe Visa Information System at borders OJ L 35/56), amended Art 7(3), Thirdly, Art 55 ofthe visa code (Reg 81012009, [2009] OJ L amended Annex V. Finally, Reg 265/2010 ([2010] OJ L 85/1) amended Arts 5(1)(b) and Code has not been consolidated, 323 See the Commission's 2010 work programme COM (2010) 135,31 Mar 2010, On exit plans, see further 3,6,2 below, 324 Arts 12(5), 32, and 33, as amended by Reg 29612008 (n 322 above), The implementing poers concern Annexes Ill, IV, and VIII, which concern signs for separate lanes at stamping oftravel documents, and proof that the border has been crossed without travel being stamped, 325 See 2,2,2,1 and 326 [2010] OJ L 111120, The legality of this measure has been challenged, on the the Council exceeded its powers to implement the Regulation when adopting it: EP v Council, pending, The Schengen Borders Code,31H which applied from 13 October 2006,319 integrated and amended all the previous rules concerning internal UUIU"D. As regards external borders, the Code repealed the relevant provisions Schengen Convention; one Schengen Executive Committee Decision; Common Manual (as amended by EC measures); and the legislation on der signs; the stamping of documents; and the power to amend the Common Manual.V' Subsequently, the Code has been amended on four occasions.V' Commission plans further amendments, pursuant inter alia to planned Iegislatior; on an entry-exit systern.Y' The Code confers powers upon the Commission to adopt implementing ures as regards three of its eight attached Annexes; the Commission can adopt implementing measures as regards border surveillance.I" All these ures are subject to the 'regulatory procedure with scrutiny', which entails scrutiny power for the EP; this process will likely be replaced by the acts' procedure introduced by the Treaty ofLisbon at some point.I" To date, implementing measure has been adopted, regarding maritime surveillance the discussion below).326 Certain decisions relating to external border crossing (such as the penalties crossing at unauthorized points or times) have been left to the Member 187External border controls: basic rules 5(3), first sub-paragraph. 350 Art 34(1)(c). 5(3), second sub-paragraph. 5(4), amended by Reg 26512010 (n 322 above), which added a reference to long-stay previously Art 18 ofthe Schengen Convention (n 307 above), as amended by Regulation OJ L 150/4). See also the transit decisions discussed in 4.2.5 below. referred to Reg 41512003 (n 316 above), but this Regulation has now been Arts 35 and 36 ofthe visa code (n 322 above). provisions for visas with 'limited territorial validity', set out in Art 25 of the visa code 355 Art 34(1)(a). are three exceptions to the rules concerning entry conditionsr'F with a residence permit, a long-stay visa, or a re-entry visa from a Member State who wish to cross the external borders in transit back to the which issued the permit shall be admitted across the border, unless they listed on the watch-list ofthe Member State they wish to cross, along with mstructions to refuse entry or transit; persons who do not meet the visa requirement, but who satisfy the criteria for obtaining a visa at the border set out in EU visa legislation, may be authorized enter if a visa is issued at the border pursuant to those rules;353 and person may be permitted to enter ifa Member State 'considers it necessary' derogate from the criteria for entry on humanitarian grounds, national interest, or international obligations; but in such a case the permission to enter be limited to the territory of that Member State, and other Member must be informed of such decisions, if the person concerned is listed the SIS.354 exception is mandatory ('shall be authorized to enter); the residence concerned must be notified to the Cornmission.I" The inevitable conseofthese rules is that persons who do not meet the criteria for entry must be entry, unless they fall into one ofthe three special categories listed above. VV\'CVCL, the obligation to refuse entry is 'without prejudice to the application of nrovisions concerning the right of asylum and to international protection oflong-stay visas'.356 The special provisions on the right to asylum and ernational protection are not further defined, and it could be argued that this is and lodging'r'"? and Member States' reference amounts for subsistence are to be notified to the Commission.P'' The possession of sufficient subsistence 'may' be y~rified, 'for example', by 'the cash, travellers' cheques and credit cards in the third-country national's possession' as well as sponsorship declarations, where a.Mernber State's law recognizes such declarations, and guarantees from hosts, asdefined by national law.P" Arguably, the words 'shall be the following' eree an obligation to admit the person concerned if the relevant conditions are Border Controls186 reflect the underlying effective sanctions principles ofEU law and the exemption ofrefugees from penalties for irregular entry as set out in Article 31 ofthe 'J\_U\.v" Convention on refugee status.?" It should be noted that these provisions do require Member States to criminalize irregular border crossing; more ","U"L"'Ly, EU law is silent on the criminal law aspects of irregular migration except specific obligations to criminalize the smuggling, trafficking, and employment of irregular migrants, which do not require criminalization of the irregulaj migrants themselves.P" The key provision of the Schengen Borders Code sets out the conditions entry for short-term stays (three months within a six-month periodj.v" conditions 'shall be the following': (a) possession of valid documents necessary to cross the borderr'!' (b) possession ofa visa ifrequired by the EU visa list legislation,345 although a dence permit or a long-stay visa is equivalent to a visa for this nllrnn'f'·J'O (c) justification of the purpose and conditions of the stay, and possession ficient means ofsubsistence; (d) absence from the list ofpersons banned from entry set up within the Schengen Information System (SIS);347 and (e) absence of a 'threat to public policy, national security or the internationat relations' of any of the Member States, 'in particular where there is in Member States' national databases refusing entry on such grounds. The final provision could be interpreted as a requirement to check all Mernbei States' national databases, but surely this is not practical on grounds oftechnicat difficulties and cost. A 'non-exhaustive' list ofdocuments providingjustification of the stay is set out in Annex I to the Code, which is a straightforward documents which can serve as evidence of travel for business, studies, CVIML,L" or private reasons, or for political, scientific, cultural, sports, religious, or reasons.?" The subsistence requirement 'shall be assessed in accordance duration and the purpose ofthe stay and by reference to average prices for 341 On the first point, see Case 68/88 Commission v Greece (Greek maize) [1989] ECR the second point, see 7.3.2 below. 342 See 7.5 343 Art 5. 344 The relevant documents are listed in a Manual of travel documents, established by Executive Committee Decisions Sch/com-ex (98) 56 and (99) 14 ([2000] OJ L 239/207 since updated pursuant to Reg 78912001 ([2001] OJ L 11612). 345 On the content ofthe visa list, see 4.5 below. 346 Art 2(15) defines 'residence permit'. The exception for long-stay visas was 265/2010 (n 322 above). 347 See further the definition in Art 2(7), which refers to Art 96 of the Schengen Conventio which concerns the grounds for issuing 'alerts' in the SIS for persons to be refused entry below). There is also an express requirement to check the SIS upon entry (Art 7 of the cussed below). 348 187External border controls: basic rules 5(3), first sub-paragraph. 350 Art 34(1)(c). 5(3), second sub-paragraph. 5(4), amended by Reg 26512010 (n 322 above), which added a reference to long-stay previously Art 18 ofthe Schengen Convention (n 307 above), as amended by Regulation OJ L 150/4). See also the transit decisions discussed in 4.2.5 below. referred to Reg 41512003 (n 316 above), but this Regulation has now been Arts 35 and 36 ofthe visa code (n 322 above). provisions for visas with 'limited territorial validity', set out in Art 25 of the visa code 355 Art 34(1)(a). are three exceptions to the rules concerning entry conditionsr'F with a residence permit, a long-stay visa, or a re-entry visa from a Member State who wish to cross the external borders in transit back to the which issued the permit shall be admitted across the border, unless they listed on the watch-list ofthe Member State they wish to cross, along with mstructions to refuse entry or transit; persons who do not meet the visa requirement, but who satisfy the criteria for obtaining a visa at the border set out in EU visa legislation, may be authorized enter if a visa is issued at the border pursuant to those rules;353 and person may be permitted to enter ifa Member State 'considers it necessary' derogate from the criteria for entry on humanitarian grounds, national interest, or international obligations; but in such a case the permission to enter be limited to the territory of that Member State, and other Member must be informed of such decisions, if the person concerned is listed the SIS.354 exception is mandatory ('shall be authorized to enter); the residence concerned must be notified to the Cornmission.I" The inevitable conseofthese rules is that persons who do not meet the criteria for entry must be entry, unless they fall into one ofthe three special categories listed above. VV\'CVCL, the obligation to refuse entry is 'without prejudice to the application of nrovisions concerning the right of asylum and to international protection oflong-stay visas'.356 The special provisions on the right to asylum and ernational protection are not further defined, and it could be argued that this is and lodging'r'"? and Member States' reference amounts for subsistence are to be notified to the Commission.P'' The possession of sufficient subsistence 'may' be y~rified, 'for example', by 'the cash, travellers' cheques and credit cards in the third-country national's possession' as well as sponsorship declarations, where a.Mernber State's law recognizes such declarations, and guarantees from hosts, asdefined by national law.P" Arguably, the words 'shall be the following' eree an obligation to admit the person concerned if the relevant conditions are Border Controls186 reflect the underlying effective sanctions principles ofEU law and the exemption ofrefugees from penalties for irregular entry as set out in Article 31 ofthe 'J\_U\.v" Convention on refugee status.?" It should be noted that these provisions do require Member States to criminalize irregular border crossing; more ","U"L"'Ly, EU law is silent on the criminal law aspects of irregular migration except specific obligations to criminalize the smuggling, trafficking, and employment of irregular migrants, which do not require criminalization of the irregulaj migrants themselves.P" The key provision of the Schengen Borders Code sets out the conditions entry for short-term stays (three months within a six-month periodj.v" conditions 'shall be the following': (a) possession of valid documents necessary to cross the borderr'!' (b) possession ofa visa ifrequired by the EU visa list legislation,345 although a dence permit or a long-stay visa is equivalent to a visa for this nllrnn'f'·J'O (c) justification of the purpose and conditions of the stay, and possession ficient means ofsubsistence; (d) absence from the list ofpersons banned from entry set up within the Schengen Information System (SIS);347 and (e) absence of a 'threat to public policy, national security or the internationat relations' of any of the Member States, 'in particular where there is in Member States' national databases refusing entry on such grounds. The final provision could be interpreted as a requirement to check all Mernbei States' national databases, but surely this is not practical on grounds oftechnicat difficulties and cost. A 'non-exhaustive' list ofdocuments providingjustification of the stay is set out in Annex I to the Code, which is a straightforward documents which can serve as evidence of travel for business, studies, CVIML,L" or private reasons, or for political, scientific, cultural, sports, religious, or reasons.?" The subsistence requirement 'shall be assessed in accordance duration and the purpose ofthe stay and by reference to average prices for 341 On the first point, see Case 68/88 Commission v Greece (Greek maize) [1989] ECR the second point, see 7.3.2 below. 342 See 7.5 343 Art 5. 344 The relevant documents are listed in a Manual of travel documents, established by Executive Committee Decisions Sch/com-ex (98) 56 and (99) 14 ([2000] OJ L 239/207 since updated pursuant to Reg 78912001 ([2001] OJ L 11612). 345 On the content ofthe visa list, see 4.5 below. 346 Art 2(15) defines 'residence permit'. The exception for long-stay visas was 265/2010 (n 322 above). 347 See further the definition in Art 2(7), which refers to Art 96 of the Schengen Conventio which concerns the grounds for issuing 'alerts' in the SIS for persons to be refused entry below). There is also an express requirement to check the SIS upon entry (Art 7 of the cussed below). 348 189External border controls: basic rules objectionable that the border checks provision ofthe Code does not fully reflect movement rules and refers to more extensive grounds than free movement provides for. The Code then specifies the 'thorough checks' to be carried out on third~01]nlTV nationals (other than those with EU free movement rights). On entry, persons shall be checked as regards their documents, the purpose and period including subsistence requirements, along with checks in national dataand the SIS. 367 r-urthermore, once the Visa Information System (VIS) becomes operational, third-countrv nationals shall also (if they hold a visa) be checked in the VIS on for the purposes of verification (a 'one-to-one' search), using fingerprints the visa sticker number.368 Due to doubts about the practicality of this obliparticularly as regards land borders.l'" it will be subject to a derogation, concl~rrllng the checking of fingerprints, for a transitional period of three years, beginning three years after the VIS has started operations.:"" The Commission evaluate the application of the derogation and report on its implementation EP and the Council within two years of the start of the derogation. Either EP or the Council may then suggest that the Commission table a proposal to the legislation;"! for the substance ofthe derogation, it will apply where intense traffic results excessive delay at border crossing points, all resources have been exhausted staff, facilities, and organization, and 'on the basis of an assessment is no risk related to internal security and illegal immigration'r'?" The first criteria match the criteria applicable to the decision to relax border conin the Borders Code,373 but the third criterion (risk assessment) does not. as compared to the rules on the relaxation of border controls, a Member not have to show (as regards the derogation from the obligation to fingerprints in the VIS) that there were 'exceptional and unforeseeable 7(3)(a). 7(3)(aa), as inserted by Reg 81/2009 (n 322 above). For the details of the VIS, see 4.8 should be noted that the VIS Reg (Reg 767/2008, [2008] OJ L 218/60) does not lay down requirement for border guards to use the VIS; only an amendment to the Schengen Borders Code do that. practical difficulties at land borders have been ameliorated, however, by the extension to Western Balkan states, and will be further ameliorated if there are in future visa for ex-Soviet countries (see 4.5 below). 7(3)(ae), as inserted by Reg 8112009 (n 322 above). Presumably the transitional period does for three years because of the three-year delay, after the VIS begins operations, before the permits the use offingerprints to search the VIS at all borders (Art 18(2) of the VIS Reg, Art 18(2) ofthe VIS Reg permits that date to be brought forward as regards air borders; ieBorders Code does not make any special provision for this situation. Ibid. See also Art 50(5) of the VIS Reg (ibid), which provides for evaluation of the provisions fingerprint searches in the VIS by external border guards, one year and three years after starts operations. 372 Art 7(3)(ab), as inserted by Reg 81/2009 (n 322 above). 8(1), discussed further below. Border Controls188 357 However, it should be recalled that the Schengen associates and Denmark do not procedures Directive. On the substance of the Directive, see 5.7 below. 358 Art 5(4)(a), as amended by Reg 26512010 (see n 352 above). 359 Arts 6-13. 360 Art 6. 361 Art 7(2), first sub-paragraph. 362 Art 7(2), second sub-paragraph, 363 Moreover, compared to Art 28(2) of Dir 2004/38 on EU citizens' free movement ([2004] OJ L 229/35), there is no reference to 'personal conduct' or to threatening the 'fundarner interests ofsociety'. But at least the definition of'public health' is identical (Art 29(1) ofthe and Art 2(19) of the Code). For more on the free movement rules, see 3.4.1 above. 364 Art 7(2), third sub-paragraph. 365 Art 7(6). 366 Art 3(a). a reference to national law; to a uniform EU concept which could be UCUllCU the Court ofJustice; to a minimum EU standard which could again be defined the Court; or to the asylum procedures Directive.v? As for the special nrovistons on long-stay visas, this should now be understood as a reference to the provisions of the Borders Code itself.358 Next, Chapter II of Title II of the Code concerns border checks and of entry."? As regards the conduct of border checks, border guards must human dignity, act proportionately and not discriminate on any listed grounds while carrying out border checks."? The Code then addresses the crucial issue of the checks that must be ried out at external borders on entry and on exit. In particular, the mum checks' to be carried out on all persons at external borders must a 'rapid and straightforward verification' of the validity of the carried, including an examination for signs of counterfeiting or tatsincauon; using technical devices and consulting databases on lost or stolen document: 'where appropriate'i''" Presumably it cannot seriously be intended that documentation of every single traveller will be fully checked in all possllt)1e databases. The Code specifies that while such checks are the 'rule' for persons exercising EU free movement rights, it is possible for border guards to check databases; on a 'nonsysternatic basis' in order to determine that such persons 'do not resent a genuine, present and sufficiently serious threat to the internal secunty, public policy, international relations of the Member States or a threat public health'.362 There is no cross-reference as regards these grounds to movement law, and this proviso differs from EU free movement law refers to 'internal security' rather than 'public security' and also to 'mternanona relations'P'" However, it is specified that such checks 'shall not jeopardise' right of entry set out in free movement legislation,364 and further that persons with free movement rights must be carried out 'in accordance free movement law. 365 Although these safeguards (and the general safeguard free movement law set out in the Code),366 in conjunction with the movement rights, should be interpreted to prevent any restriction on free ment rights as a result ofchecking databases, it is possible in practice that a guard might apply these conflicting provisions more restrictively. In particu.lar, 189External border controls: basic rules objectionable that the border checks provision ofthe Code does not fully reflect movement rules and refers to more extensive grounds than free movement provides for. The Code then specifies the 'thorough checks' to be carried out on third~01]nlTV nationals (other than those with EU free movement rights). On entry, persons shall be checked as regards their documents, the purpose and period including subsistence requirements, along with checks in national dataand the SIS. 367 r-urthermore, once the Visa Information System (VIS) becomes operational, third-countrv nationals shall also (if they hold a visa) be checked in the VIS on for the purposes of verification (a 'one-to-one' search), using fingerprints the visa sticker number.368 Due to doubts about the practicality of this obliparticularly as regards land borders.l'" it will be subject to a derogation, concl~rrllng the checking of fingerprints, for a transitional period of three years, beginning three years after the VIS has started operations.:"" The Commission evaluate the application of the derogation and report on its implementation EP and the Council within two years of the start of the derogation. Either EP or the Council may then suggest that the Commission table a proposal to the legislation;"! for the substance ofthe derogation, it will apply where intense traffic results excessive delay at border crossing points, all resources have been exhausted staff, facilities, and organization, and 'on the basis of an assessment is no risk related to internal security and illegal immigration'r'?" The first criteria match the criteria applicable to the decision to relax border conin the Borders Code,373 but the third criterion (risk assessment) does not. as compared to the rules on the relaxation of border controls, a Member not have to show (as regards the derogation from the obligation to fingerprints in the VIS) that there were 'exceptional and unforeseeable 7(3)(a). 7(3)(aa), as inserted by Reg 81/2009 (n 322 above). For the details of the VIS, see 4.8 should be noted that the VIS Reg (Reg 767/2008, [2008] OJ L 218/60) does not lay down requirement for border guards to use the VIS; only an amendment to the Schengen Borders Code do that. practical difficulties at land borders have been ameliorated, however, by the extension to Western Balkan states, and will be further ameliorated if there are in future visa for ex-Soviet countries (see 4.5 below). 7(3)(ae), as inserted by Reg 8112009 (n 322 above). Presumably the transitional period does for three years because of the three-year delay, after the VIS begins operations, before the permits the use offingerprints to search the VIS at all borders (Art 18(2) of the VIS Reg, Art 18(2) ofthe VIS Reg permits that date to be brought forward as regards air borders; ieBorders Code does not make any special provision for this situation. Ibid. See also Art 50(5) of the VIS Reg (ibid), which provides for evaluation of the provisions fingerprint searches in the VIS by external border guards, one year and three years after starts operations. 372 Art 7(3)(ab), as inserted by Reg 81/2009 (n 322 above). 8(1), discussed further below. Border Controls188 357 However, it should be recalled that the Schengen associates and Denmark do not procedures Directive. On the substance of the Directive, see 5.7 below. 358 Art 5(4)(a), as amended by Reg 26512010 (see n 352 above). 359 Arts 6-13. 360 Art 6. 361 Art 7(2), first sub-paragraph. 362 Art 7(2), second sub-paragraph, 363 Moreover, compared to Art 28(2) of Dir 2004/38 on EU citizens' free movement ([2004] OJ L 229/35), there is no reference to 'personal conduct' or to threatening the 'fundarner interests ofsociety'. But at least the definition of'public health' is identical (Art 29(1) ofthe and Art 2(19) of the Code). For more on the free movement rules, see 3.4.1 above. 364 Art 7(2), third sub-paragraph. 365 Art 7(6). 366 Art 3(a). a reference to national law; to a uniform EU concept which could be UCUllCU the Court ofJustice; to a minimum EU standard which could again be defined the Court; or to the asylum procedures Directive.v? As for the special nrovistons on long-stay visas, this should now be understood as a reference to the provisions of the Borders Code itself.358 Next, Chapter II of Title II of the Code concerns border checks and of entry."? As regards the conduct of border checks, border guards must human dignity, act proportionately and not discriminate on any listed grounds while carrying out border checks."? The Code then addresses the crucial issue of the checks that must be ried out at external borders on entry and on exit. In particular, the mum checks' to be carried out on all persons at external borders must a 'rapid and straightforward verification' of the validity of the carried, including an examination for signs of counterfeiting or tatsincauon; using technical devices and consulting databases on lost or stolen document: 'where appropriate'i''" Presumably it cannot seriously be intended that documentation of every single traveller will be fully checked in all possllt)1e databases. The Code specifies that while such checks are the 'rule' for persons exercising EU free movement rights, it is possible for border guards to check databases; on a 'nonsysternatic basis' in order to determine that such persons 'do not resent a genuine, present and sufficiently serious threat to the internal secunty, public policy, international relations of the Member States or a threat public health'.362 There is no cross-reference as regards these grounds to movement law, and this proviso differs from EU free movement law refers to 'internal security' rather than 'public security' and also to 'mternanona relations'P'" However, it is specified that such checks 'shall not jeopardise' right of entry set out in free movement legislation,364 and further that persons with free movement rights must be carried out 'in accordance free movement law. 365 Although these safeguards (and the general safeguard free movement law set out in the Code),366 in conjunction with the movement rights, should be interpreted to prevent any restriction on free ment rights as a result ofchecking databases, it is possible in practice that a guard might apply these conflicting provisions more restrictively. In particu.lar, 191External border controls: basic rules 3."iiSee 4.4.1 below. 382 See 3.6.2 below. 383 See ibid. 38·COM (2008) 69, 13 Feb 2008. 3"iOn the timeframe to roll-out the VIS, see 4.8 below. This point is also relevant to the pracalities of imposing VIS checks at land borders. It remains to be seen which non-Member States rdering the EU, if any, are still subject to a visa obligation by the time that the VIS is rolled out neighbouring regions. 386 Art 7(3)(b). 7(3)(c). 7(3)(c)(i), as amended by Reg 8112009 (n 322 above). There is no derogation permitted. 3.6.2 below. 7(3)(d), inserted by Reg 8112009 (ibid). There is no derogation permitted. IlJJlpC)rtant, because information on the persons concerned will nevertheless be in the VIS.381 amendments to the Code will be relevant to the future establishment entry-exit system.P'" But it must be noted that an entry-exit system cannot as long as a derogation applies at entry, and in the absence ofan obligato enter information on visa holders at exit points as well (on which, see ow). The potential difficulties in applying such a system would obviously be ltiplied if it applies to non-visa nationals as well, as the Commission intends, ough the Commission has suggested the parallel development of a 'trusted yeller' system in order to avoid bottlcnecks.Y' If the VIS begins operations in 2010 as planned, the de rogations in the VIS gulation and the Borders Code concerning the use of biometrics in the VIS on entry will expire in 2016-which is after the time frame in which the ommission estimates that an entry-exit system could begin operations.V" It ould also be recalled that the initial three-year derogation from the use offinrprint checks at external borders in the VIS Regulation will overlap with the lling out of the VIS-so the impact of the use of the VIS at external borders ill be limited for some time.385 Moving on to controls on exit, checks must include a check on the validity d.genuineness of travel documents and 'whenever possible' a verification that (jperson is not a threat to 'public policy, internal security, or the international ations of any of the Member States'.386 Exit checks may also involve verifica- 11. of a visa, checks as to whether a person overstayed, and checks in the SIS or tional databases387-although of course the required check 'wherever possible' whether the person is a threat to for example, public policy would seem to tail a mandatory SIS check. Member States will also have an option, once the S.becomes operational, to check persons on exit in the VIS for the purposes verification.P" Again, these provisions are linked to the future development of entry-exit system.:"" Purthermore, once the VIS becomes operational, Member States will have an ticm to search the VIS, presumably either on entry or exit, to check persons in VIS for the purposes of identification (a 'one-to-many' searchj.:'?" Border Controls190 374 Art 8(1). 375 It should also be noted that passports also still have to be stamped, even where are relaxed: see Art 8(3), discussed below. 376 Art 7(3)(ac) of the Borders Code, inserted by Reg 8112009. Note that the border command at the border post also decides on whether to relax border controls in the Art 8(2), discussed below. However, as compared to the VIS derogation, the Borders Code require the notification of each decision to relax border controls. 377 Art 7(3)(ad), inserted by Reg 8112009. Note that Member States must also report the relaxation of border checks generally (Art 8(4), discussed below). 378 Council doc 15501/08 add 1, 20 Nov 2008. 379 Case C-292/89 Antonissen [1991] ECR 1-745, para 18. 380 Art 7(2) and (3), along with the definitions in Art 2(5) and (6). See 3.4.1 above. circumstances', which 'shall be deemed to be those where unforeseeable lead to the intense traffic in questiori.?" It follows that in principle, the deCISlOIJ to relax border controls and the derogation from full use ofthe VIS on pntnJ' ",ill not always apply simultaneously, although in practice it is likely that this often be the case. If the derogation applies, the VIS must still be searched in all cases visa sticker, and in random cases using fingerprints as well.375 The VIS have to be searched using visa sticker and fingerprints in 'all cases where is doubt as to the identity of the holder of the visa and/or the authenticity visa'. Decisions to apply the derogation will have to be taken by the border in command at the border post or at a higher level, and notified immediately the other Member States and to the Comrnission.?" Member States must annually on the use of the derogation to the Commission, including nrovidin information on 'the number ofthird-country nationals who were checked VIS using the number ofthe visa sticker only and the length ofthe vxza t t-t rt owhich justified the derogation."? A statement was adopted by the Council and Commission when evant Regulation amending the Borders Code was adopted, asserting Council and the Commission stress that the derogation ... should not be for a total period of more than 5 days or 120 hours per year at any border ing point'. Also, the statement provides that the 'evaluation carried out Commission ... will consider the infrastructure of the border crossing including recent and planned developments, as well as any factor that may an influence on passenger flows, and may contain suggestions accordingly'i'" It should be recalled that according to the Court declaration cannot be used for the purpose ofinterpreting a provision ary legislation where ... no reference is made to the content ofthe declaration the wording of the provision in question. The declaration therefore has significance.P?" Neither the obligation nor the option to check the VIS at external will apply to third-country national family members of EU citizens, are not subject to the relevant provisions of the Borders Code.380 The 191External border controls: basic rules 3."iiSee 4.4.1 below. 382 See 3.6.2 below. 383 See ibid. 38·COM (2008) 69, 13 Feb 2008. 3"iOn the timeframe to roll-out the VIS, see 4.8 below. This point is also relevant to the pracalities of imposing VIS checks at land borders. It remains to be seen which non-Member States rdering the EU, if any, are still subject to a visa obligation by the time that the VIS is rolled out neighbouring regions. 386 Art 7(3)(b). 7(3)(c). 7(3)(c)(i), as amended by Reg 8112009 (n 322 above). There is no derogation permitted. 3.6.2 below. 7(3)(d), inserted by Reg 8112009 (ibid). There is no derogation permitted. IlJJlpC)rtant, because information on the persons concerned will nevertheless be in the VIS.381 amendments to the Code will be relevant to the future establishment entry-exit system.P'" But it must be noted that an entry-exit system cannot as long as a derogation applies at entry, and in the absence ofan obligato enter information on visa holders at exit points as well (on which, see ow). The potential difficulties in applying such a system would obviously be ltiplied if it applies to non-visa nationals as well, as the Commission intends, ough the Commission has suggested the parallel development of a 'trusted yeller' system in order to avoid bottlcnecks.Y' If the VIS begins operations in 2010 as planned, the de rogations in the VIS gulation and the Borders Code concerning the use of biometrics in the VIS on entry will expire in 2016-which is after the time frame in which the ommission estimates that an entry-exit system could begin operations.V" It ould also be recalled that the initial three-year derogation from the use offinrprint checks at external borders in the VIS Regulation will overlap with the lling out of the VIS-so the impact of the use of the VIS at external borders ill be limited for some time.385 Moving on to controls on exit, checks must include a check on the validity d.genuineness of travel documents and 'whenever possible' a verification that (jperson is not a threat to 'public policy, internal security, or the international ations of any of the Member States'.386 Exit checks may also involve verifica- 11. of a visa, checks as to whether a person overstayed, and checks in the SIS or tional databases387-although of course the required check 'wherever possible' whether the person is a threat to for example, public policy would seem to tail a mandatory SIS check. Member States will also have an option, once the S.becomes operational, to check persons on exit in the VIS for the purposes verification.P" Again, these provisions are linked to the future development of entry-exit system.:"" Purthermore, once the VIS becomes operational, Member States will have an ticm to search the VIS, presumably either on entry or exit, to check persons in VIS for the purposes of identification (a 'one-to-many' searchj.:'?" Border Controls190 374 Art 8(1). 375 It should also be noted that passports also still have to be stamped, even where are relaxed: see Art 8(3), discussed below. 376 Art 7(3)(ac) of the Borders Code, inserted by Reg 8112009. Note that the border command at the border post also decides on whether to relax border controls in the Art 8(2), discussed below. However, as compared to the VIS derogation, the Borders Code require the notification of each decision to relax border controls. 377 Art 7(3)(ad), inserted by Reg 8112009. Note that Member States must also report the relaxation of border checks generally (Art 8(4), discussed below). 378 Council doc 15501/08 add 1, 20 Nov 2008. 379 Case C-292/89 Antonissen [1991] ECR 1-745, para 18. 380 Art 7(2) and (3), along with the definitions in Art 2(5) and (6). See 3.4.1 above. circumstances', which 'shall be deemed to be those where unforeseeable lead to the intense traffic in questiori.?" It follows that in principle, the deCISlOIJ to relax border controls and the derogation from full use ofthe VIS on pntnJ' ",ill not always apply simultaneously, although in practice it is likely that this often be the case. If the derogation applies, the VIS must still be searched in all cases visa sticker, and in random cases using fingerprints as well.375 The VIS have to be searched using visa sticker and fingerprints in 'all cases where is doubt as to the identity of the holder of the visa and/or the authenticity visa'. Decisions to apply the derogation will have to be taken by the border in command at the border post or at a higher level, and notified immediately the other Member States and to the Comrnission.?" Member States must annually on the use of the derogation to the Commission, including nrovidin information on 'the number ofthird-country nationals who were checked VIS using the number ofthe visa sticker only and the length ofthe vxza t t-t rt owhich justified the derogation."? A statement was adopted by the Council and Commission when evant Regulation amending the Borders Code was adopted, asserting Council and the Commission stress that the derogation ... should not be for a total period of more than 5 days or 120 hours per year at any border ing point'. Also, the statement provides that the 'evaluation carried out Commission ... will consider the infrastructure of the border crossing including recent and planned developments, as well as any factor that may an influence on passenger flows, and may contain suggestions accordingly'i'" It should be recalled that according to the Court declaration cannot be used for the purpose ofinterpreting a provision ary legislation where ... no reference is made to the content ofthe declaration the wording of the provision in question. The declaration therefore has significance.P?" Neither the obligation nor the option to check the VIS at external will apply to third-country national family members of EU citizens, are not subject to the relevant provisions of the Borders Code.380 The 391 Art 7(4). 392 Art 7(5). 393 See Art 7(7). 394 Art 9, which took over the provisions of a 2004 Decision on this issue (n 311 395 Art 8(1). Arts 8, 10, and 11 took over the provisions ofReg 213312004 (ibid). 396 Art 8(2) and (3) respectively: on stamping of documents, see below. 397 Art 398 Art 10(1). The detailed arrangements for stamping are set out in Annex IV (Art 399 Art 10(2), interpreted a contrario; see 3.4.1 above. 193External border controls: basic rules UUA,rt 10(3). 401 Art 11(1). 402 Art 11(2) and Annex VIII. 403 Art 11(3). o'Joined Cases C-261/08 Zurita Garda and C-348/08 Cheque Cabrera,judgment of22 Oct 2009, yet reported. Although the Spanish text ofthe Code states that the person 'must' be expelled, the rt gave priority to the wording in all of the other language versions, which indicate that there option to expel. With respect, it is not clear from the facts of these cases whether or not there a failure to stamp the documents of the persons concerned; the Court (and Advocate General) ly assumed that Art 11 of the Code was applicable. The judgment also interpreted Art 23 of the ention, which will be replaced by the Returns Directive (Dir 2008/115 ([2008] OJ L 348/98) m 24 Dec 2010 (Arts 20 and 21 of the Directive). On this Art, see 7.7 below. Dir 2008/115 (ibid); see 7.7.1 below. The Directive did not amend the Borders Code and there express provision in the Directive indicating how the prima facie mandatory expulsion set i1'1 Art 6 of the Directive relates to the optional expulsion referred to in Art 11(3) of the Code. ever, the Directive does specify that it is 'without prejudice' to 'more favourable provisions' he 'the Community acquis relating to immigration and asylum' (Art 4(2) of the Directive). This surely mean that the optional expulsion in the Code must take precedence over the mandatory ulsion in the Directive, where the two rules overlap. It should also be noted that Art 11(1) ofthe e only provides for an option, not an obligation, to presume in the first place that the conditions stay have been breached in the event that the documents in questions are not stamped. On the ionship between the Code and the Directive on this point, see also the opinion in Zurita GaI'cia ),passport need not be stamped, because a risk of exceeding the authorized iod of short stay does not arise. While this is a sensible argument, nevereless there is no express exception to this end in the Code.407 Equally the Border Controls192 Thorough checks will take place, if possible, in a non-public area, at .th request ofthe person concerned.t?' Persons must be given information about th purpose ofthe check and the procedures applicable, and may request the nameo service number ofthe border guard(s) carrying out the check and the locationan the date of crossing.392 Both these provisions should contribute to the objectiv of ensuring fair treatment during border checks. Finally, the information whic must be registered at the borders is listed in Annex II to the Code:393 the nam of the border guards; any relaxation of checks; the issuing of documents at borders; persons apprehended and complaints; persons refused entry (groun for refusal and nationalities); information on the security stamps used andt guards using them; complaints from persons subject to checks; police or judici action; and particular occurrences. These amendments should make a contribution respectively to ensuring reasonable behaviour by border to combating corruption or other criminal activity regarding falsified document It would be even more useful if this data were published. Member States are obliged to provide for separate lanes at airports and EEA citizens and their family members, on the one hand, and for all third-country nationals, on the other hand. They have an option as to to provide for separate lanes at sea and land borders.:'?" As noted already, the Code provides for the possible relaxation of in limited circumstances, 'as a result of exceptional and unforeseen circu stances', which are 'deemed to be those where unforeseeable events lead tot fie of such intensity that the waiting time at the border crossing point excessive, and all resources have been exhausted as regards staff, idl_ii'Ll':> organisation'P" In that case, entry checks must take priority over exit and there is anyway an obligation to stamp each travel document on exit.396 Member States must submit an annual report on the relaxation checks to the EP and Commission."? but there is no information avauaorc these reports. Next, travel documents (usually passports) must be stamped when country nationals cross the border, both on entry and exit, regardless the travellers are subject to a visa obligation or not.398 There is an exemption third-country national family members ofEU citizens ifthey hold residence in accordance with EU free movement laW.399 There are also express exemption for heads of state and dignitaries, certain transport workers, and to nationals Andorra, San Marino, and Monaco. The obligation might also '[elxceptiona 391 Art 7(4). 392 Art 7(5). 393 See Art 7(7). 394 Art 9, which took over the provisions of a 2004 Decision on this issue (n 311 395 Art 8(1). Arts 8, 10, and 11 took over the provisions ofReg 213312004 (ibid). 396 Art 8(2) and (3) respectively: on stamping of documents, see below. 397 Art 398 Art 10(1). The detailed arrangements for stamping are set out in Annex IV (Art 399 Art 10(2), interpreted a contrario; see 3.4.1 above. 193External border controls: basic rules UUA,rt 10(3). 401 Art 11(1). 402 Art 11(2) and Annex VIII. 403 Art 11(3). o'Joined Cases C-261/08 Zurita Garda and C-348/08 Cheque Cabrera,judgment of22 Oct 2009, yet reported. Although the Spanish text ofthe Code states that the person 'must' be expelled, the rt gave priority to the wording in all of the other language versions, which indicate that there option to expel. With respect, it is not clear from the facts of these cases whether or not there a failure to stamp the documents of the persons concerned; the Court (and Advocate General) ly assumed that Art 11 of the Code was applicable. The judgment also interpreted Art 23 of the ention, which will be replaced by the Returns Directive (Dir 2008/115 ([2008] OJ L 348/98) m 24 Dec 2010 (Arts 20 and 21 of the Directive). On this Art, see 7.7 below. Dir 2008/115 (ibid); see 7.7.1 below. The Directive did not amend the Borders Code and there express provision in the Directive indicating how the prima facie mandatory expulsion set i1'1 Art 6 of the Directive relates to the optional expulsion referred to in Art 11(3) of the Code. ever, the Directive does specify that it is 'without prejudice' to 'more favourable provisions' he 'the Community acquis relating to immigration and asylum' (Art 4(2) of the Directive). This surely mean that the optional expulsion in the Code must take precedence over the mandatory ulsion in the Directive, where the two rules overlap. It should also be noted that Art 11(1) ofthe e only provides for an option, not an obligation, to presume in the first place that the conditions stay have been breached in the event that the documents in questions are not stamped. On the ionship between the Code and the Directive on this point, see also the opinion in Zurita GaI'cia ),passport need not be stamped, because a risk of exceeding the authorized iod of short stay does not arise. While this is a sensible argument, nevereless there is no express exception to this end in the Code.407 Equally the Border Controls192 Thorough checks will take place, if possible, in a non-public area, at .th request ofthe person concerned.t?' Persons must be given information about th purpose ofthe check and the procedures applicable, and may request the nameo service number ofthe border guard(s) carrying out the check and the locationan the date of crossing.392 Both these provisions should contribute to the objectiv of ensuring fair treatment during border checks. Finally, the information whic must be registered at the borders is listed in Annex II to the Code:393 the nam of the border guards; any relaxation of checks; the issuing of documents at borders; persons apprehended and complaints; persons refused entry (groun for refusal and nationalities); information on the security stamps used andt guards using them; complaints from persons subject to checks; police or judici action; and particular occurrences. These amendments should make a contribution respectively to ensuring reasonable behaviour by border to combating corruption or other criminal activity regarding falsified document It would be even more useful if this data were published. Member States are obliged to provide for separate lanes at airports and EEA citizens and their family members, on the one hand, and for all third-country nationals, on the other hand. They have an option as to to provide for separate lanes at sea and land borders.:'?" As noted already, the Code provides for the possible relaxation of in limited circumstances, 'as a result of exceptional and unforeseen circu stances', which are 'deemed to be those where unforeseeable events lead tot fie of such intensity that the waiting time at the border crossing point excessive, and all resources have been exhausted as regards staff, idl_ii'Ll':> organisation'P" In that case, entry checks must take priority over exit and there is anyway an obligation to stamp each travel document on exit.396 Member States must submit an annual report on the relaxation checks to the EP and Commission."? but there is no information avauaorc these reports. Next, travel documents (usually passports) must be stamped when country nationals cross the border, both on entry and exit, regardless the travellers are subject to a visa obligation or not.398 There is an exemption third-country national family members ofEU citizens ifthey hold residence in accordance with EU free movement laW.399 There are also express exemption for heads of state and dignitaries, certain transport workers, and to nationals Andorra, San Marino, and Monaco. The obligation might also '[elxceptiona 195External border controls: basic rules 414 Art 12(5), as amended by Reg 296/2008 (n 322 above). above. 416 See 3.10.1. 417 Art 13(1); see the discussion ofArt 5 above. referring to Annex V, PartA, since amended by Art 55 ofthe visa code (n 322 above). Annex refers to the Schengen and ED rules on carrier sanctions (see 7.5.1 below). and Annex V, Part B. 420 Art 13(3). 421 Art 13(4) 13(5). For more on this, see 3.11 below. Next, the Code contains basic rules on border surveillance; addressing the purposes of surveillance; the types of units to be used; the numbers of border gllards to be used and their methods; and the requirement to survey sensitive areas in particular.t!' Further measures concerning surveillance may be adopted accordance with a comitology procedure, involving participation of the EP.414 n.implernenting measure relating to maritime border surveillance was adopted tBZOlO.415 This Decision only concerns surveillance operations coordinated by ontex, so is discussed further below.t" The Code then sets out rules concerning refusal of entry, which are obvisly among its most important provisions. As noted above, the general rule is at persons who do not meet the criteria for admission must be denied entry, bject to certain exceptions;"? more detailed rules on the procedure for refusing Btry are set out in an Annex to the Code.418 There are also procedural rights persons denied entry. Entry may only be refused 'by a substantiated decision ting the precise reasons for the refusal', which is given by means of a standard m annexed to the Code. The decision must be taken by a legally empowered ority, must take effect immediately, and the decision form must be given to person concerned, who 'shall acknowledge receipt'.'!" persons refused entry have 'the right to appeal'; the appeal 'shall be concted in accordance with national law'. Member States must give the person cerned a written list of contact points who could provide information on sons who could represent him or her. But appeals 'shall not have suspensive et', If successful, an appeal must entail that the cancelled entry stamp is corted; this is '[w]ithout prejudice to any compensation granted in accordance thnationallaw'.42o Unsurprisingly, the Code specifies that border guards must that persons refused entry shall not enter the territory of the Member 421 Member States must collect statistics on the numbers refused entry; their the grounds for refusal of entry; and the type ofborder where entry .'"'.u,,~u. This information must be transmitted annually to the Commission; publish it every two years.f" possible that these provisions will overlap with the scope ofthe Returns LC\<~l'VC, which gives Member States an option (but not an obligation) to persons refused entry in accordance with the Borders Code from of that Directive, which contains its own specific rules on prorights and related issues such as detention. Member States may also from the scope of that Directive those persons 'who are apprehended Border Controls194 national family members of ED citizens with residence cards from the stamping obligation expressly set out-it follows from an a contrario reading of Art 10(2) along with Art possible to argue (although the Commission does not) that the stamping obligation does such persons because the Code only applies to persons admitted for a short stay in the first Art 5(1». But if that were the case, why does the Code contain references to persons WllILlung,-' visas and residence permits in other provisions (Art 5(1)(b) and (4)(a), for instance)? 408 See 3.6.2 below. Note, however, that an entry-exit system is not forecast to be operational un 2015, so this would not alleviate the position ofthe lorry drivers in the meantime. The ,-,~,uuu,,'" seems unwilling to consider any special solution for this category ofpersons (the creation permit, a system ofemployers' liability, reciprocal agreementswith states oforigin on documents, or the development of a sui generis entry-exit system for the meantime). 409 See 3.5 above. 4LO Art 28 provides that '[w]here border control at internal borders is reintroduced, the provisions ofTitle 1I shall apply mutatismutandis'. It might be deduced that Art 10(1) is not a provision' for this purpose, but it might be better to specify exactly what these 'relevant are in the interests oflegal certainty. 411 This is a distinct issue from the obligation to provide statistics on refusal of (Art 13(5». 412 Art 11(2), final sub-parazrapl Commission does not see the need to create an exception to the obligation for lorry drivers, who are the main group affected by stamps up a passport early, due to the risk of illegal immigration; it entry-exit system will eventually address their position.?" The Commission does intend, on the other hand, to propose an express exception from stamping obligation for railway workers who regularly travel in and out EU. Also, the Commission takes the view that a stamping obligation be applied at internal borders, even where border checks are reinstated ant to the applicable provisions of the Code,409 given that the re-rntroducno of those checks cannot alter the total length of authorized stay. This is undoubtedly a sound argument, but not expressly set out in the worumz the Code.410 As for the presumption of illegality, most Member States do not tistics on the numbers of persons who are found on the territory or while exiting without an entry stamp, or who are able or not able to presumption of irregular stay, although in fact the Code does not require to do SO.411 The Commission rightly points out that this information ously be useful in order to assess the effect ofthe provisions on stamping, fault here lies with the legislation, which failed to set out an obligation respect. Equally, most Member States have not informed the Commission their practices on the presumption ofillegal stay, although on this point the does set out an obligation.!" It is not clear from the information supplied Commission whether or not Member States always presume that the absence an entry stamp indicates an irregular stay. Ultimately, the Commission conclusions about the rules in the Code on the presumption of an and does not mention the issue of the link between these rules and the Directive (see the discussion above). 195External border controls: basic rules 414 Art 12(5), as amended by Reg 296/2008 (n 322 above). above. 416 See 3.10.1. 417 Art 13(1); see the discussion ofArt 5 above. referring to Annex V, PartA, since amended by Art 55 ofthe visa code (n 322 above). Annex refers to the Schengen and ED rules on carrier sanctions (see 7.5.1 below). and Annex V, Part B. 420 Art 13(3). 421 Art 13(4) 13(5). For more on this, see 3.11 below. Next, the Code contains basic rules on border surveillance; addressing the purposes of surveillance; the types of units to be used; the numbers of border gllards to be used and their methods; and the requirement to survey sensitive areas in particular.t!' Further measures concerning surveillance may be adopted accordance with a comitology procedure, involving participation of the EP.414 n.implernenting measure relating to maritime border surveillance was adopted tBZOlO.415 This Decision only concerns surveillance operations coordinated by ontex, so is discussed further below.t" The Code then sets out rules concerning refusal of entry, which are obvisly among its most important provisions. As noted above, the general rule is at persons who do not meet the criteria for admission must be denied entry, bject to certain exceptions;"? more detailed rules on the procedure for refusing Btry are set out in an Annex to the Code.418 There are also procedural rights persons denied entry. Entry may only be refused 'by a substantiated decision ting the precise reasons for the refusal', which is given by means of a standard m annexed to the Code. The decision must be taken by a legally empowered ority, must take effect immediately, and the decision form must be given to person concerned, who 'shall acknowledge receipt'.'!" persons refused entry have 'the right to appeal'; the appeal 'shall be concted in accordance with national law'. Member States must give the person cerned a written list of contact points who could provide information on sons who could represent him or her. But appeals 'shall not have suspensive et', If successful, an appeal must entail that the cancelled entry stamp is corted; this is '[w]ithout prejudice to any compensation granted in accordance thnationallaw'.42o Unsurprisingly, the Code specifies that border guards must that persons refused entry shall not enter the territory of the Member 421 Member States must collect statistics on the numbers refused entry; their the grounds for refusal of entry; and the type ofborder where entry .'"'.u,,~u. This information must be transmitted annually to the Commission; publish it every two years.f" possible that these provisions will overlap with the scope ofthe Returns LC\<~l'VC, which gives Member States an option (but not an obligation) to persons refused entry in accordance with the Borders Code from of that Directive, which contains its own specific rules on prorights and related issues such as detention. Member States may also from the scope of that Directive those persons 'who are apprehended Border Controls194 national family members of ED citizens with residence cards from the stamping obligation expressly set out-it follows from an a contrario reading of Art 10(2) along with Art possible to argue (although the Commission does not) that the stamping obligation does such persons because the Code only applies to persons admitted for a short stay in the first Art 5(1». But if that were the case, why does the Code contain references to persons WllILlung,-' visas and residence permits in other provisions (Art 5(1)(b) and (4)(a), for instance)? 408 See 3.6.2 below. Note, however, that an entry-exit system is not forecast to be operational un 2015, so this would not alleviate the position ofthe lorry drivers in the meantime. The ,-,~,uuu,,'" seems unwilling to consider any special solution for this category ofpersons (the creation permit, a system ofemployers' liability, reciprocal agreementswith states oforigin on documents, or the development of a sui generis entry-exit system for the meantime). 409 See 3.5 above. 4LO Art 28 provides that '[w]here border control at internal borders is reintroduced, the provisions ofTitle 1I shall apply mutatismutandis'. It might be deduced that Art 10(1) is not a provision' for this purpose, but it might be better to specify exactly what these 'relevant are in the interests oflegal certainty. 411 This is a distinct issue from the obligation to provide statistics on refusal of (Art 13(5». 412 Art 11(2), final sub-parazrapl Commission does not see the need to create an exception to the obligation for lorry drivers, who are the main group affected by stamps up a passport early, due to the risk of illegal immigration; it entry-exit system will eventually address their position.?" The Commission does intend, on the other hand, to propose an express exception from stamping obligation for railway workers who regularly travel in and out EU. Also, the Commission takes the view that a stamping obligation be applied at internal borders, even where border checks are reinstated ant to the applicable provisions of the Code,409 given that the re-rntroducno of those checks cannot alter the total length of authorized stay. This is undoubtedly a sound argument, but not expressly set out in the worumz the Code.410 As for the presumption of illegality, most Member States do not tistics on the numbers of persons who are found on the territory or while exiting without an entry stamp, or who are able or not able to presumption of irregular stay, although in fact the Code does not require to do SO.411 The Commission rightly points out that this information ously be useful in order to assess the effect ofthe provisions on stamping, fault here lies with the legislation, which failed to set out an obligation respect. Equally, most Member States have not informed the Commission their practices on the presumption ofillegal stay, although on this point the does set out an obligation.!" It is not clear from the information supplied Commission whether or not Member States always presume that the absence an entry stamp indicates an irregular stay. Ultimately, the Commission conclusions about the rules in the Code on the presumption of an and does not mention the issue of the link between these rules and the Directive (see the discussion above). 197External border controls: basic rules Entry-exit system 17; see Art 37 on notification. 18-19. The detailed rules appear in Annexes VI and VII. subsequently the action plan on unaccompanied minors (COM (2010) 213, 6 May 2010) conclusions on this issue OHA Council press release, 3 June 2010), which refer to collection of data and risk assessments by Frontex on this issue. major step in the development of EU external border controls could creation of an 'entry-exit' system, which, as noted above, would keep special rule concerning joint control of the common land borders of those ember States not yet fully applying the Schengen rules. Until the Schengen quis is fully applicable to them, those States can jointly control their borders, \'iithout prejudice to Member States' individual responsibility. To this end, Member States may conclude bilateral agreements, which they must inform the Commission of.430 Finally, Chapter IV of Title Il of the Code sets out specific rules for border hecks in certain cases, concerning respectively different types of borders and ~ifferent categories of persons.v" For instance, the rules on crossing by road iJ.1.particular permit drivers usually to stay in their vehicles during checks; the ules for checking trains en route to or from third countries have been amended o allow for 'juxtaposed control' in third States; the rules on air travel contain tirely new provisions on private flights; and the rules on sea borders were ended in particular to strengthen the rules on control ofcruise ships and pleasre boats and to tighten the definition offishing vessels which will not generally echecked. As for checks on particular categories of persons, there are six categories of rsons subject to special treatment: heads ofstate; pilots and other aircraft crew; men; holders of diplomatic, official, or service passports and of documents ued by international organization; cross-border workers; and minors. For the special rules for Heads of State and their delegation exempt them from border checks; holders of diplomatic, official, or service passports documents issued by international organizations are exempt from subsistence quirernents, must be given priority when crossing, and cannot be refused entry guards unless the guards first check with foreign ministries; crossworkers need not be subject to a check every time they cross the border, are 'well known' to the border guards due to their 'frequent crossing' and not listed in the SIS when an initial check was carried out; and minors the subject of 'particular attention' from border guards, to ensure that ComlJall1e:d minors are with persons entitled to exercise parental care and that l~ccomlnl1ie:d minors are not leaving the territory against the wishes of the with parental care of them.P'' Border Controls 423 Art 2(2)(a) ofDir 2008/115 (n 404 above). 424 Conversely, of course, ifa Member State does not invoke the exclusion, persons at the border will benefit from the provisions in both the Returns Directive and the Presumably, in the event of overlap, the rule setting the highest standards will apply, Art 4(2) of the Returns Directive. 425 Art 4(4), Dir 2008/115 (n 404 above). The obligation to respect the principle refoulement is not further defined (cf also Art 5 of the Directive), although note that in the Directive is subject to more favourable provisions in other EU immigration and d'yW'" U'~d"" (Art 4(2)). See further 7.7.1 below. 427 Art 14. 428 Art 15; see Art 34(1)(d) on notification. 429 Art 16. 196 or intercepted by the competent authorities in connection with the lar crossing by land, sea or air of the external border of a Member State who have not subsequently obtained an authorisation or a right to that Member State'.423 If Member States take up these options, the category of persons will at least benefit from the procedural rights set the Borders Code.424 But more problematically, the latter category of will not benefit from any procedural rights whatsoever as a matter ofEU this position is impossible to defend. Arguably this category of persons sufficiently within the scope ofEU law to be covered by the general principles of EU law, and can therefore derive procedural rights in that connection. any event, the Returns Directive requires that for both categories of persons; Member States must 'ensure that their treatment and level of protection less favourable than' the rules in that Directive regarding limitations on of coercive measures; postponement of removal; emergency health needs of vulnerable persons, and detention conditions; and must also 'r,,",..,,',.. the principle of non-refoulement'.425 Next, Chapter III of Title Il concerns cooperation between national autnons ties, as well as staff and resources for border controls.!" Member States deploy 'appropriate staffand resources' in order to carry out border checks as vided for in Chapter Il, 'to ensure an efficient, high and uniform level at their external borders'Y' Checks must be carried out by border guards formity with national law; the guards must be sufficiently specialized and and encouraged to learn relevant languages. Member States must ensure ettecnv: coordination of all relevant national services, and notify the Commission services responsible for border guard duties.v" As for cooperation between Member States, there is a general requirement assistance and cooperation in accordance with other provisions of Code. must also exchange relevant information. The code refers to the role in coordinating border operations, as well as Member States' role as operational coordination, including the exchange of liaison officers, as this does not interfere with the work of the Agency. Member States vide for training of border guards on border control and fundamental taking account ofthe standards developed by the Agency.v? Furthermore, 197External border controls: basic rules Entry-exit system 17; see Art 37 on notification. 18-19. The detailed rules appear in Annexes VI and VII. subsequently the action plan on unaccompanied minors (COM (2010) 213, 6 May 2010) conclusions on this issue OHA Council press release, 3 June 2010), which refer to collection of data and risk assessments by Frontex on this issue. major step in the development of EU external border controls could creation of an 'entry-exit' system, which, as noted above, would keep special rule concerning joint control of the common land borders of those ember States not yet fully applying the Schengen rules. Until the Schengen quis is fully applicable to them, those States can jointly control their borders, \'iithout prejudice to Member States' individual responsibility. To this end, Member States may conclude bilateral agreements, which they must inform the Commission of.430 Finally, Chapter IV of Title Il of the Code sets out specific rules for border hecks in certain cases, concerning respectively different types of borders and ~ifferent categories of persons.v" For instance, the rules on crossing by road iJ.1.particular permit drivers usually to stay in their vehicles during checks; the ules for checking trains en route to or from third countries have been amended o allow for 'juxtaposed control' in third States; the rules on air travel contain tirely new provisions on private flights; and the rules on sea borders were ended in particular to strengthen the rules on control ofcruise ships and pleasre boats and to tighten the definition offishing vessels which will not generally echecked. As for checks on particular categories of persons, there are six categories of rsons subject to special treatment: heads ofstate; pilots and other aircraft crew; men; holders of diplomatic, official, or service passports and of documents ued by international organization; cross-border workers; and minors. For the special rules for Heads of State and their delegation exempt them from border checks; holders of diplomatic, official, or service passports documents issued by international organizations are exempt from subsistence quirernents, must be given priority when crossing, and cannot be refused entry guards unless the guards first check with foreign ministries; crossworkers need not be subject to a check every time they cross the border, are 'well known' to the border guards due to their 'frequent crossing' and not listed in the SIS when an initial check was carried out; and minors the subject of 'particular attention' from border guards, to ensure that ComlJall1e:d minors are with persons entitled to exercise parental care and that l~ccomlnl1ie:d minors are not leaving the territory against the wishes of the with parental care of them.P'' Border Controls 423 Art 2(2)(a) ofDir 2008/115 (n 404 above). 424 Conversely, of course, ifa Member State does not invoke the exclusion, persons at the border will benefit from the provisions in both the Returns Directive and the Presumably, in the event of overlap, the rule setting the highest standards will apply, Art 4(2) of the Returns Directive. 425 Art 4(4), Dir 2008/115 (n 404 above). The obligation to respect the principle refoulement is not further defined (cf also Art 5 of the Directive), although note that in the Directive is subject to more favourable provisions in other EU immigration and d'yW'" U'~d"" (Art 4(2)). See further 7.7.1 below. 427 Art 14. 428 Art 15; see Art 34(1)(d) on notification. 429 Art 16. 196 or intercepted by the competent authorities in connection with the lar crossing by land, sea or air of the external border of a Member State who have not subsequently obtained an authorisation or a right to that Member State'.423 If Member States take up these options, the category of persons will at least benefit from the procedural rights set the Borders Code.424 But more problematically, the latter category of will not benefit from any procedural rights whatsoever as a matter ofEU this position is impossible to defend. Arguably this category of persons sufficiently within the scope ofEU law to be covered by the general principles of EU law, and can therefore derive procedural rights in that connection. any event, the Returns Directive requires that for both categories of persons; Member States must 'ensure that their treatment and level of protection less favourable than' the rules in that Directive regarding limitations on of coercive measures; postponement of removal; emergency health needs of vulnerable persons, and detention conditions; and must also 'r,,",..,,',.. the principle of non-refoulement'.425 Next, Chapter III of Title Il concerns cooperation between national autnons ties, as well as staff and resources for border controls.!" Member States deploy 'appropriate staffand resources' in order to carry out border checks as vided for in Chapter Il, 'to ensure an efficient, high and uniform level at their external borders'Y' Checks must be carried out by border guards formity with national law; the guards must be sufficiently specialized and and encouraged to learn relevant languages. Member States must ensure ettecnv: coordination of all relevant national services, and notify the Commission services responsible for border guard duties.v" As for cooperation between Member States, there is a general requirement assistance and cooperation in accordance with other provisions of Code. must also exchange relevant information. The code refers to the role in coordinating border operations, as well as Member States' role as operational coordination, including the exchange of liaison officers, as this does not interfere with the work of the Agency. Member States vide for training of border guards on border control and fundamental taking account ofthe standards developed by the Agency.v? Furthermore, 199External border controls: basic rules as a whole, the Borders Code is clearly vastly better drafted than the texts replaced, although it has several flaws. There are significant improvements as procedural rights, fair treatment, accountability, and transparency, but provisions are unclear (as regards the use of databases on EU citizens, and the exercise ofpolice powers) or ill-considered (the rules on exit which are arguably impractical). The Code could more clearly have d.dre~;sed the issue of whether there is a right to entry if the relevant conditions satisfied, although it is arguable, as noted above, that a right to entry can be from the wording of the entry conditions rules set out in the Code. the additional provisions concerning asylum are welcome, the opportunity to rethink the conditions for entry and to provide for detailed proviensuring that the right to asylum is respected at external borders; the latter those criteria, see 4.7.2 below. does 14334/08, 16 Oct 2008 and 15630/08, 1 Dec 2008. The questionnaire did not the parallel issue of developing a 'trusted traveller' system. doc 13267/09,26 Sep 2009. authorised stay at previous visits to the EU), proof of sufficient means of {subsistence, and holding a biometric passport', but '[fJurther criteria could be considered" and visa nationals could get registered traveller status on the basis of criteria for obtaining multiple entry visas.'?" Applicants for this status would to apply at consulates or common application centres. In the Commission's the entry-exit system and the accompanying trusted traveller programme be applicable by 2015. Finally, the possible electronic system of travel authorization would apply to ion-visa nationals, 'who would be requested to make an electronic application unnlvinc-. in advance of travelling, data identifying the traveller and specifying passport and travel details'. This data would be used to verify that the person sOIIce:rnedfulfilled the entry conditions'before travelling to the EU, while using and simpler procedure compared to a visa'. waiting for the Commission's legislative proposal regarding an entrysystem, the Council conducted a questionnaire to determine Member States' iosmons on the planned system.t" and conducted a pilot project to register the and categorization ofall persons crossing the Schengen external borders one week in September 2009. 439 There were 12.9 million entries or exits single week, comprising 9.3 million EU citizens and other persons with free novement rights, 2.1 million non-visa nationals, and 1.5 million visa nationmillion people crossed at sea borders, 5.0 million at land borders, and ,u',"u,,", at air borders. Border Controls198 track of the entry into and out ofthe Schengen zone ofmost categories country nationals. Such a system was suggested by the Commission in a detailed communication in February 2008, which also addressed the related issues 'trusted traveller' programme and a system of electronic travel authorization. The Commission is planning to propose legislation on an entry-exit and traveller systems, and a communication on electronic travel authorrzation, 2011.434 According to the 2008 Commission communication, the main purpose the entry-exit system would be to identify third-country nationals who 'overstayed' their period of permitted stay in the Union, whether or not were subject to a visa obligation. Such persons are the biggest categorv irregular migrants in the EU.435 The system would record data on 'the time place of entry, the length ofstay authorised, and the transmission ofautomated alerts' to the authorities on overstayers, once they violate the rules in question and also when they leave the EU. In case of change ofstatus (justified overstay; or a grant ofresidence), the information concerned would be updated. It be necessary for the VIS to be fully operational before the entry-exit was applied to visa nationals.f" As for non-visa nationals, they would give their biometric data when they first entered the EU once the new was applicable; the Commission admits that this 'could potentially complicate the management of passenger flows, especially at certain land border rr'....cci no- points'. These problems, according to the Commission, could be addressed by ducing, in conjunction with the new entry-exit system, a new category traveller' for certain third-country nationals (again available to both visa nationals and non-visa nationals), based on a pre-screening process offered on a volU11tary basis. These persons would be exempt from some of the conditions of the border (regarding the purpose of stay, means of subsistence, and absence threat to public order), and would also be admitted through automated gates, which would register their identity and travel history as well as biometrics (fingerprints and photographs) against their travel document or base. The automated gates could also be used by EU citizens, nationals States, Swiss nationals, and family members of such persons, provided that held biometric passports, with the proviso that in accordance with free movement law, their movement would not be recorded. The 'common vetting criteria' for this status for third-country nationals be, 'as a minimum ... a reliable travel history (the person should not have exceedei 433 Communication on the next steps in border management (COM (2008) 69, 13 Feb 434 See the Commission's action plan for implementation of the Stockholm programme (2010) 171, 20 Apr 2010). m See the impact assessment attached to the Commission communication (SEC 13 Feb 2008). 436 On the VIS, see 4.8 199External border controls: basic rules as a whole, the Borders Code is clearly vastly better drafted than the texts replaced, although it has several flaws. There are significant improvements as procedural rights, fair treatment, accountability, and transparency, but provisions are unclear (as regards the use of databases on EU citizens, and the exercise ofpolice powers) or ill-considered (the rules on exit which are arguably impractical). The Code could more clearly have d.dre~;sed the issue of whether there is a right to entry if the relevant conditions satisfied, although it is arguable, as noted above, that a right to entry can be from the wording of the entry conditions rules set out in the Code. the additional provisions concerning asylum are welcome, the opportunity to rethink the conditions for entry and to provide for detailed proviensuring that the right to asylum is respected at external borders; the latter those criteria, see 4.7.2 below. does 14334/08, 16 Oct 2008 and 15630/08, 1 Dec 2008. The questionnaire did not the parallel issue of developing a 'trusted traveller' system. doc 13267/09,26 Sep 2009. authorised stay at previous visits to the EU), proof of sufficient means of {subsistence, and holding a biometric passport', but '[fJurther criteria could be considered" and visa nationals could get registered traveller status on the basis of criteria for obtaining multiple entry visas.'?" Applicants for this status would to apply at consulates or common application centres. In the Commission's the entry-exit system and the accompanying trusted traveller programme be applicable by 2015. Finally, the possible electronic system of travel authorization would apply to ion-visa nationals, 'who would be requested to make an electronic application unnlvinc-. in advance of travelling, data identifying the traveller and specifying passport and travel details'. This data would be used to verify that the person sOIIce:rnedfulfilled the entry conditions'before travelling to the EU, while using and simpler procedure compared to a visa'. waiting for the Commission's legislative proposal regarding an entrysystem, the Council conducted a questionnaire to determine Member States' iosmons on the planned system.t" and conducted a pilot project to register the and categorization ofall persons crossing the Schengen external borders one week in September 2009. 439 There were 12.9 million entries or exits single week, comprising 9.3 million EU citizens and other persons with free novement rights, 2.1 million non-visa nationals, and 1.5 million visa nationmillion people crossed at sea borders, 5.0 million at land borders, and ,u',"u,,", at air borders. Border Controls198 track of the entry into and out ofthe Schengen zone ofmost categories country nationals. Such a system was suggested by the Commission in a detailed communication in February 2008, which also addressed the related issues 'trusted traveller' programme and a system of electronic travel authorization. The Commission is planning to propose legislation on an entry-exit and traveller systems, and a communication on electronic travel authorrzation, 2011.434 According to the 2008 Commission communication, the main purpose the entry-exit system would be to identify third-country nationals who 'overstayed' their period of permitted stay in the Union, whether or not were subject to a visa obligation. Such persons are the biggest categorv irregular migrants in the EU.435 The system would record data on 'the time place of entry, the length ofstay authorised, and the transmission ofautomated alerts' to the authorities on overstayers, once they violate the rules in question and also when they leave the EU. In case of change ofstatus (justified overstay; or a grant ofresidence), the information concerned would be updated. It be necessary for the VIS to be fully operational before the entry-exit was applied to visa nationals.f" As for non-visa nationals, they would give their biometric data when they first entered the EU once the new was applicable; the Commission admits that this 'could potentially complicate the management of passenger flows, especially at certain land border rr'....cci no- points'. These problems, according to the Commission, could be addressed by ducing, in conjunction with the new entry-exit system, a new category traveller' for certain third-country nationals (again available to both visa nationals and non-visa nationals), based on a pre-screening process offered on a volU11tary basis. These persons would be exempt from some of the conditions of the border (regarding the purpose of stay, means of subsistence, and absence threat to public order), and would also be admitted through automated gates, which would register their identity and travel history as well as biometrics (fingerprints and photographs) against their travel document or base. The automated gates could also be used by EU citizens, nationals States, Swiss nationals, and family members of such persons, provided that held biometric passports, with the proviso that in accordance with free movement law, their movement would not be recorded. The 'common vetting criteria' for this status for third-country nationals be, 'as a minimum ... a reliable travel history (the person should not have exceedei 433 Communication on the next steps in border management (COM (2008) 69, 13 Feb 434 See the Commission's action plan for implementation of the Stockholm programme (2010) 171, 20 Apr 2010). m See the impact assessment attached to the Commission communication (SEC 13 Feb 2008). 436 On the VIS, see 4.8 201Schengen Information System Schengen Information System 3.7. Schengen Information system-s general legal framework governing SIS and SIS 11,see 12.6.1.1 below. [:2000] OJ L 239. H5 Ibid. For a list of these measures, see 12.6.1.1 below. OJ L 38. SIS was initially established by Articles 92-119 (Title IV) of the ScJtlelD.gen Convention.t'" as applied from March 1995. Further rules are set decisions of the Schengen Executive Comrnittee.t" including the establishing the Sirene Manual, which governs subsequent exchanges of following a 'hit' in the SIS.446 Despite its dual application for immipurpIJSC~S on the one hand and criminal law and policing purposes on the as planned, will identify overstayers effectively, it will not assist authorifind them ifthey have disappeared. It is assumed that an entry-exit system be integrated into the VIS or applied seamlessly in parallel with it. and complications of the development of a completely separate system bear thinking about. In any event, any system will have to be subject to data protection rules to avoid the effect oferroneous identification, and the for overstay will have to be proportionate and take account oflegitimate for overstay such asforce majeure, applications for international protection, reasons. the other plans for future developments, an authorized traveller system probably be essential if an entry-exit system is introduced, in order to that delays at border crossings do not become intolerable. Again, such a could not be used to store information on the movements ofEU citizens, ens of Schengen associates, and their family members. It will be essential to re that the rules for registration in this system are fair and transparent, and data protection rights apply fully to the vetting process. On the other hand, C()mmissi,on has not yet made a very convincing case for the idea ofdevelopof electronic travel authorization. Schengen Information System (SIS) is a well-known and long-established of the Schengen border control system, with the main purpose (in the iizracion context) ofmaking available to the relevant national officials a comof names of persons who should not be allowed to enter the Schengen current system has been amended and the EU also intends to establish lCQD,d-glen(~ratlOn System (SIS II), which has been bedevilled by operational The current SIS and future SIS II will be considered in turn. Border Controls200 HII See 5.7 below. 441 See SEC (2004) 1628,28 Dec 2004. This impact assessment simply states (at p 17) will be lost at entry and exit points by providing and checking biometric data', without feasibility of checking such data in all cases of entry. On the same page, the Commission the 'very significant' financial costs of the VIS at EU level and for national visa authorities, does 'not include the costs for the border crossing points as these costs cannot be estimated present time'. 442 The absolute obligation in the Borders Code to stamp the passports als, even when border controls are relaxed, will already slow down any attempt to at the border crossing. issue is complicated by the controversial and highly questionable provisions ofthe EU's asylum procedures Directive."!" The amendment to the Borders Code relating to the VIS may in particular prove to be impractical. It is striking that there was no impact assessment either of the proposal to amend the Code as regards VIS use or ofthe practical implications of this particular issue when the Commission assessed the impact of the original proposal for the VIS Regulation.r" The derogation from use of the VIS upoll entry set out in the Borders Code is drafted quite narrowly, and it may not prove feasible to spend time assessing the impact ofgranting a derogation when a quick decision has to be made to address traffic flOWS.442 When the relevant derogations expire at the end of 2015, the rules on the full use of the VIS at borders may be more realistic, at least as regards land borders, if visa requirements are by then abolished for all Western Balkan states and perhaps at least some other neighbour.-. ing states. It is also possible that visa facilitation treaties might be amended.to address this issue in future. Of course if an entry-exit system is by then opera tional and applies to all non-visa-nationals at the Commission intends, thenth issue will present itself again-all the more so given that an entry-exit would require non-EU citizens to be checked upon exit as well as entry. As for the stamping ofdocuments, the rules in the Code have proved pr;lctiq. according to the Commission's assertions, although it does not follow use of VIS at the borders, especially the extra time taken to obtain fingerprints would still be feasible. It would be useful to know more about how presumptior regarding irregular stay is actually applied. This brings us to the planned entry-exit system. It should first of all be that in light ofEU free movement law, it would not be legal to apply such a to EU citizens and their family members, including citizens States or Schengen associates. Also, there is little point in applying this non-visa nationals, given the relatively limited risk of overstay which in practice as compared to the extra costs and complications that from applying the system to them. If nationals ofa particular country not to visa obligations in fact have a high rate of overstaying, the obvious solutica' simply to impose a visa obligation on nationals ofthat country, rather than an entry-exit system on all non-visa nationals. While an entry-exit 201Schengen Information System Schengen Information System 3.7. Schengen Information system-s general legal framework governing SIS and SIS 11,see 12.6.1.1 below. [:2000] OJ L 239. H5 Ibid. For a list of these measures, see 12.6.1.1 below. OJ L 38. SIS was initially established by Articles 92-119 (Title IV) of the ScJtlelD.gen Convention.t'" as applied from March 1995. Further rules are set decisions of the Schengen Executive Comrnittee.t" including the establishing the Sirene Manual, which governs subsequent exchanges of following a 'hit' in the SIS.446 Despite its dual application for immipurpIJSC~S on the one hand and criminal law and policing purposes on the as planned, will identify overstayers effectively, it will not assist authorifind them ifthey have disappeared. It is assumed that an entry-exit system be integrated into the VIS or applied seamlessly in parallel with it. and complications of the development of a completely separate system bear thinking about. In any event, any system will have to be subject to data protection rules to avoid the effect oferroneous identification, and the for overstay will have to be proportionate and take account oflegitimate for overstay such asforce majeure, applications for international protection, reasons. the other plans for future developments, an authorized traveller system probably be essential if an entry-exit system is introduced, in order to that delays at border crossings do not become intolerable. Again, such a could not be used to store information on the movements ofEU citizens, ens of Schengen associates, and their family members. It will be essential to re that the rules for registration in this system are fair and transparent, and data protection rights apply fully to the vetting process. On the other hand, C()mmissi,on has not yet made a very convincing case for the idea ofdevelopof electronic travel authorization. Schengen Information System (SIS) is a well-known and long-established of the Schengen border control system, with the main purpose (in the iizracion context) ofmaking available to the relevant national officials a comof names of persons who should not be allowed to enter the Schengen current system has been amended and the EU also intends to establish lCQD,d-glen(~ratlOn System (SIS II), which has been bedevilled by operational The current SIS and future SIS II will be considered in turn. Border Controls200 HII See 5.7 below. 441 See SEC (2004) 1628,28 Dec 2004. This impact assessment simply states (at p 17) will be lost at entry and exit points by providing and checking biometric data', without feasibility of checking such data in all cases of entry. On the same page, the Commission the 'very significant' financial costs of the VIS at EU level and for national visa authorities, does 'not include the costs for the border crossing points as these costs cannot be estimated present time'. 442 The absolute obligation in the Borders Code to stamp the passports als, even when border controls are relaxed, will already slow down any attempt to at the border crossing. issue is complicated by the controversial and highly questionable provisions ofthe EU's asylum procedures Directive."!" The amendment to the Borders Code relating to the VIS may in particular prove to be impractical. It is striking that there was no impact assessment either of the proposal to amend the Code as regards VIS use or ofthe practical implications of this particular issue when the Commission assessed the impact of the original proposal for the VIS Regulation.r" The derogation from use of the VIS upoll entry set out in the Borders Code is drafted quite narrowly, and it may not prove feasible to spend time assessing the impact ofgranting a derogation when a quick decision has to be made to address traffic flOWS.442 When the relevant derogations expire at the end of 2015, the rules on the full use of the VIS at borders may be more realistic, at least as regards land borders, if visa requirements are by then abolished for all Western Balkan states and perhaps at least some other neighbour.-. ing states. It is also possible that visa facilitation treaties might be amended.to address this issue in future. Of course if an entry-exit system is by then opera tional and applies to all non-visa-nationals at the Commission intends, thenth issue will present itself again-all the more so given that an entry-exit would require non-EU citizens to be checked upon exit as well as entry. As for the stamping ofdocuments, the rules in the Code have proved pr;lctiq. according to the Commission's assertions, although it does not follow use of VIS at the borders, especially the extra time taken to obtain fingerprints would still be feasible. It would be useful to know more about how presumptior regarding irregular stay is actually applied. This brings us to the planned entry-exit system. It should first of all be that in light ofEU free movement law, it would not be legal to apply such a to EU citizens and their family members, including citizens States or Schengen associates. Also, there is little point in applying this non-visa nationals, given the relatively limited risk of overstay which in practice as compared to the extra costs and complications that from applying the system to them. If nationals ofa particular country not to visa obligations in fact have a high rate of overstaying, the obvious solutica' simply to impose a visa obligation on nationals ofthat country, rather than an entry-exit system on all non-visa nationals. While an entry-exit