178 Border Controls 3.5. Internal border controls The EU rules on the abolition of internal border controls, including a power to reintroduce those controls, were initially set out, as mentioned above, in the Schengen Convention.275 This provision of the Convention was also implemented by three Decisions adopted by the Schengen Executive Committee, which concerned the issues of: obstacles to traffic flows;276 bringing the Convention into force;277 and procedures for reintroducing border checks.278 The relevant provision of the Schengen Convention and the three Executive Committee Decisions were then integrated into the legal order of the EC (as it then was) with the entry into force of the Treaty of Amsterdam; all were attributed the legal base of Article 62(1) EC (now Article 77(2)(e) TFEU).279 Research on the application of the Schengen Convention in two Member States indicated that following the abolition of internal controls, the size and powers of 'internal' border guard forces were increased considerably.280 Also, the power to reintroduce controls was frequently invoked, in particular in the context of planned large-scale demonstrations at EU summit meeting^281 The Council even adopted measures on this issue, which in particular provided for the exchange of information on alleged troublemakers, with the aim of lessening the effect of re-imposed internal border controls by means of targeted policing.282 As from 13 October 2006, the basic rules regulating the abolition of internal border controls derive from the Regulation establishing the Schengen Borders Code, which also sets ojatcgmmonjxtexui-^^ The Code replaced the relevant provision of the Schengen Convention and two of the three Executive Committee Decisions.284 F5 Art 2 of the Convention ([2000] OJ I. 239/1). -'" SCH/Com-ex (94) 1 rev 2 ([2000| OJ L 239/157). ' ' SCH/Com-ex (94) 29 rev 2 ([2000] OJ L 239/130). '"" SCI l/Cora-ex (95) 20 rev 2 ([2000] OJ L 239/133). ,:" Decision 1999/436 ([1999] OJ L 1/6/17). However, tins Council Decision stated that Art 2(2) and (3) of the Convention were without prejudice to Art 64(1) EC (now Art 72 TFEU), which sets out Member States' responsibilities as regards law, order, and security. On the interpretation of this provision, see 3.2.4 above. Furthermore, Art 2(4) of the Convention was not allocated any legal base, because it was believed to be obsolete (see Decision 1999/435, [1999] OJ 1. 176/1). M0 See K Groenendijk, 'New borders Behind Old Ones: Post Schengen Controls Behind the Internal Borders—Inside the Netherlands and Germany' in E Guild, P Minderhoud, and K Groenendijk, cds. In Search of Europe's Borders (Kluwer, 2003) 131. 281 See K Groenendijk, 'Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom?' (2004) 10 ELJ 150, and generally the second edition of this book, at 133. 2"2 See: JHA Council conclusions (JHA Council press release, July 2001): a security handbook for police use at such events (Council doc 126.37/3/02, 12 Nov 2002); and a Resolution on security at European Councils ([2004[ OJ C 116/18). See further 12.7 below. 2"' Reg 562/2006 (|2006] OJ L 105/1), Art 40. On the external borders provisions, see 3.6.1 below. All references in the rest of this section are to the Borders Code Reg, unless otherwise indicated. 2m Art 39(1) and 2(b) of the Code. The Decision which was not repealed was SCH/Com-ex (94) 29 rev 2 (n 277 above), setting out rules concerning the initial application of the Convention. It Internal border controls 179 Title III of the Code concerns internal border controls,285 and Chapter I of ^hi^Titl^concerns the abolition of such controls.286 The first provision repeats the basic rule at the core of the previous Schengen Convention, that 'internal borders canbecrossed at any point without any checks on persons being carried out'.28^_ Despite this basic rule, four types of checks are still permitted:288 the exercise of police powers, where there is no 'effect equivalent to border checks'; security checks at ports and airports (if such checks also apply to movement within a Member State); the possibility to impose an obligation to hold or carry documents; and the registration requirement set out in the freedom to travel provisions of the Schengen Convention.289 The 'police powers' exception sets out four cases 'in particular' where the exercise of police powers shall not be considered equivalent to border checks:290 the checks do not have border control as an objective; they are based on general police information and experience and aim 'in particular' at combating 'cross-border crime'; they are devised and executed differently from systematic checks at the external borders; and they do not entail spot-checks. It is not clear if these provisions are alternative or cumulative, although in any event the list is non-exhaustive (as is the second item on the list). Furthermore, there is no notification or transparency requirement which would assist in an assessment of whether the rules are being applied correctly. It could possibly be argued, however, that the concept of a police check with an 'effect equivalent to border checks' could be interpreted as broadly as a measure having an equivalent effect to a quantitative restriction on the free movement of goods.291 One key question is whether police checks would infringe the Code if they are carried out at or near the borders for the purposes of migration control. It is striking that there is no direct reference to this issue in this provision of the Code. In light of this, and since any checks carried out at or near borders for the main purpose or with the main effect of migration control must surely be considered as having the prohibited objective of border control (and perhaps also an effect equivalent to an internal border check), it must follow that such checks would violate the Code. Finally, it should be noted that these police checks are not covered by the ban on discriminatory conduct set out elsewhere in the Borders Code, which only applies to checks at the external borders;292 but surely it can be argued that a police check within the scope of this internal borders provision which is mainly aimed h;i> net subsequently been amended or repealed, although points 3 and 4 of this Decision are now tffeajly obsolete. 285 Arts 20-31. 286 Arts 20-22. 287 Art 20. lffS8::Art 21. Member States must notify the national provisions relating to the third and fourth ixeeptions to the Commission: Art 37. For these notifications, see: . dev !redraw! rijiIn-. t'n.litiii-'-'nniihi'atKuiN Ill289;: Art 22 of the Convention, which has not been amended or repealed; see 4.9 below. 290 Art 21(a). 291 See Art 28 EC (now Art 34 TFEU). 292 Art 6(2). 180 Border Controls at non-white people falls nonetheless within the scope of the principle of equality, which is protected as a general principle of EU law. Next, Member States are obliged to remove road-traffic obstacles at the internal borders, including any unjustified special speed limits, but nonetheless they must be 'prepared to provide for facilities' to reintroduce internal border checks if necessary.293 Chapter II of Title III of the Borders Code concerns the reintroduction of internaTbord^^ The basic rule is that a Member State can 'exceptionally' reintroduce border controls for up to thirty days, or for a longer period if the duration of the relevant event is foreseeable, in the 'event of a serious threat to public policy or to internal security'; but the 'scope and duration' of the reintroduced checks 'shall not exceed what is strictly necessary to respond to the reintroduced checks'.295 The reintroduction of controls may be continued for further renewable periods of up to thirty days, 'taking into account jny new elements'.296 Compared to the previous Schengen Convention rules,297 the threshold for reintroduction of checks is higher, the time period is more precisely specified and the necessity rule is stricter. The basic rule is supplemented by msxs^SpS;a&SiJmks, depending on whether the reintroduction of border checks is foreseeable or urgent. First of all, where the reintroduction of controls is foreseeable,298 Member States must inform the Commission and other Member States 'as soon as possible' of its plans to reintroduce controls, and provide information 'as soon as available' on the reasons for and the scope of the reintroduction of controls, the authorized crossing points, the date and duration of the introduction, and (if relevant) the measures to be taken by other Member States. The Commission may issue an opinion on the planned reintroduction, and there shall be consultation on the planned controls between the Member States and the Commission in order to discuss the proportionality of the controls and possibly also 'mutual cooperation between the Member States'. These rules were a change from the previous procedures as regards the role of the Commission (which had no role at all previously), the date of the consultations (at least fifteen days before the reintroduction of controls), and the requirement to discuss the proportionality of the planned controls.299 Secondly, in the event that 'mgsmL»Uxonl is required, Member States may reintroduce controls withouL^jricy^jaoii^ provided that the relevant information is sent to the Commission and other Member States later.300 As for 293 Art 22. This clause Look over the gist of Schengen Executive Committee Decision. 94(1) (n 276 above), which was repealed. 294 Arts 23-31. 295 Art 23(1). 2« Art 23(2). 2,7 Art 2(2) of the Convention, repealed by the Borders Code. 298 Art 24. 299 Compare to point 1 of SCH/Com-ex (95) 20 (n 278 above), which has been repealed by, the Code. 300 Art 25. There is no change from the previous rules (point 2 of SCH/Com-ex (95) 20, ibid). Internal border controls 181 the procedure for prolonging controls, it simply requires the application of the procedure for reintroducing controls.301 Finally, Title III of the Code contains provisions on: informing the EP of decisions on reintroduced controls (and reporting to the EP following the third consecutive extension of reintroduced controls); clarifying that the external borders rules will apply when internal border checks are reintroduced; requiring a report when internal border controls are lifted, outlining the operation of the internal checks and their effectiveness; requiring information to the public about reintroduced controls unless there are overriding security reasons to the contrary; and requiring the EU institutions and other Member States to respect the confidentiality of information submitted by a Member State at its request.302 Also, the Commission was obliged to report on the application of Title III of the Code by October 2009;303 the report was to 'pay particular attention to any difficulties arising from the reintroduction of border control at internal borders' and '[where appropriate]... present proposals aimed at resolving such difficulties'. The Commission has not yet issued this report. Of course, it should be recalled when considering the issue of internal border controls that until the entry into force of the Treaty of Lisbon, according to the prior Article 68(2) EC, the Court of Justice did not have 'jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) [which conferred powers to adopt measures concerning internal borders] relating to the maintenance of law and order and the safeguarding of internal security'. This in effect prevented the Court of Justice from ruling on the validity of the reintroduction of internal border controls by any Member State. After this limit on its jurisdiction has been lifted, it was not long before the Court of Justice was asked to interpret the rules on internal border controls.304 In the Melki and Abdeli judgment, it criticized the Trench practice for police controls behind the internal borders, in particular because the national law in question 'contains neither further details nor limita-> tions on the power thus conferred—in particular in relation to the intensity and frequency of the controls which may be carried out on that legal basis—for the purposes of preventing the practical application of that power, by the competent authorities, from leading to controls with an effect equivalent to border checks'. To comply with the limitations in the Borders Code, national law 'granting a spower to police authorities to carry out identity checks—a power which, first, is restricted to the border area of the Member State with other Member States and, second, does not depend upon the behaviour of the person checked or on specific ■circumstances giving rise to a risk of breach of public order—must provide the 301 Art 26. Again, there is no change from the previous rules (point 3 of SCH/Com-ex (95) 20). 302 Arts 27—31. Most of these provisions are new as compared to the previous rules. Air U m Joined Cases C-188/10 and C-189/10 Melki and Abdeli, judgment of 22 June 2010, not yet reported. 182 Border Controls necessary framework for the power granted to those authorities in order, nucr alia, to guide the discretion which those authorities enjoy in the practical application of that power. Tjjatjfrajr^ejyp^^ exercise ojfjJhatjrjow^ ejruivalej^joj^ timesjrorr^^ The large nraji^yjjfcaj^^^ NATO andMG^ Many of the reports on these reintroductions of controls are not available, but there are some available reports.306 Since many of the required reports on the reintroduction of border controls in individual cases are not available, and since the Commission has not produced its report on the internal borders rules, it is difficult to ascertain whether the Borders Code has had any impact on this issue. It is striking, however, that controls were apparently reintroduced more frequently in 2009 and 2010 than in previous years. One might surmise that the older Member States feel less secure since the enlargement of the Schengen zone. 3.6. External border controls: basic rules Like the rules on the abolition of internal border controls, the basic rules on harmonized externalborder controls were initially set out in the Schengen Convention,307 along with measures adopted by the Schengen Executive Committee, particularly a Ccirrmir^M^r^ along with two other Decisions of the Schengen Executive Committee.309 305 Council docs: 13837/06,11 Oct 2006; 15332/06,15 Nov 2006; 6084/07,7 Feb 2007; 10172/08, 30 May 2008; 13603/08, 1 Oct 2008; 7725/09, 18 Mar 2009; 7501/09, 20 Mar 2009; 11380/09, 25 June 2009; 13613/09, 24 Oct 2009; 13913/09, 1 Oct 2009; 13979/09, 2 Oct 2009; 16280/09, 20 Nov 2009; 16911/09, 1 Dec 2009; 7899/10, 23 Mar 2010; 8580/10, 15 Apr 2010; 9190/10, 21 Apr 2010; and 8584/10, add 1, 27 May 2010. 306 For instance, see the report by Austria regarding reintroduction of controls during the 2008 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 acquis regarding internal borders, see 3.5 above. For more detail on the measures concerning external border controls in force before the adoption of the Schengen Borders Code, see the second edition of this book, at 135-139. 308 The Manual (as consolidated in Schengen Executive Committee Decision Sch/Com-ex (99) 13) was initially classified, but was subsequently mostly declassified (see Decisions in [2000] OJ L 303/29 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 Sch/Com-ex (98) 1 on the activities of a task force ([2000] OJ L 239/168 and 191). External border controls: basic rules 183 Following the integration of the Schengen acquis into the EC and EU legal order, in accordance with the Treaty of Amsterdam,310 these measures were supplemented by EC acts, in particular a Decision concerning border signs and a Regulation on the stamping of documents.311 Furthermore, the Council adopted in 2001 a Regulation which conferred upon itself (and Member States) the power to amend the Common Manual.312 A challenge to this measure by the Commission before the Court of Justice (on the grounds that the Council had not adequately explained why it conferred those implementing powers upon itself, whereas the normal rule is to confer them on the Commission) was unsuccessful.313 This Regulation was used to amend the Common Manual on several occasions, in particular to add a standard form for refusing entry and the border/14 The Manual was also amended on several other occasions: by the EU's borders legislation,315 by legislative acts concerning visas,316 as well as incidentally when the Council amended the basic rales governing the procedure for visa applications (the Common Consular Instructions).317 In 2006, the various measures setting out the basic rules governing external border controls were all integrated and amended in the form of the Regulation establishing the Schengen Borders Codg. The next major development in this area will be the development of an entry-exit system, ie a system which stores precise information on the movements of each third-country national across the external borders. These two issues will be considered in tiym. Of course, these measures should be seen in the broader context of the other measures discussed US'?; Arts 2—8 of the Convention and Schengen Executive Committee Decisions Sch/Com-ex (94) 17 and Sch/Com-ex (98) 1 were allocated to Art 62(2)(a) EC (now Art 77(2)(b) TFEU), except fbr:Art 7 of the Convention, which was allocated to Art 66 EC (now Art 74 TFEU), and Art 4 of j||esCpnvention, which was not allocated at all due to obsolescence. The Common Manual was ISllbcated to Art 62 and 63 EC (now Arts 11—19 TFEU). See the Council Decisions on the definition and allocation of the acquis (1999/435 and 1999/436, [1999] OJ L 176/1 and 17). 311 See respectively [2004] OJ L 261/119 and Reg 2133/2004, [2004] OJ L 369/5. The Regulation IBteralia inserted two new provisions into the Schengen Convention (Arts 6a and 6b) and amended lirt/6(2)(e) of the Convention, while the Decision inter alia amended Sch/Com-ex (94) 17 (n 309 above). 312 Reg 790/2001, [2001] OJ L 116/5. 313 Case C-257/01 Commission v Council [2005] ECR 1-345. 314 The first two amendments ([2002] OJ L 123/47 and [2002] OJ L 187/50) made 'housekeeping' jlhailges; the third amendment increased checks on minors ([2004] OJ L 157/36); and the fourth Slniendment introduced a common form to be used when refusing entry at the border ([2004] OJ 1 261/36). 315 Art 3 of Reg 2133/2004 (n 311 above). 316 Art 7(2) of Reg 539/2001 ([2001] OJ L 81/3); Art 2 of Reg 334/2002 ([2002] OJ L 53/7); Art 5(2) and (3) of Reg 415/2003 ([2003] OJ L 64/1); and Art 11(2) of Reg 693/2003 ([2003] OJ L li9/8)/On the substance of these measures, see 4.5—4.7 below. 317 Art 1(2), (4), and (5) of Decision 2001/329 ([2001] OJ L 116/32); Art 3 of Decision 2001/420 ([2001] OJ L 150/47); Art 2 of Decision 2002/44 ([2002] OJ L 20/5); the Decision on fees for considering visa applications ([2003] OJ L 152/82); Decisions 2003/585 and 2003/586 on transit visa iequirements ([2003] OJ L 198/13 and 15); Art 2 of Decision 2004/17 on travel medical insurance requirements ([2004] OJ L 5/79); and the June 2006 Decision on visa fees ([2006] OJ L 175/77). On l|e:substance of these measures, see 4.7.1 below. 184 Border Controls in this chapter, concerning passport security, the Schengen Information System, and the EU's border agency, Frontex. 3.6.1. Schengen Borders Code The Schengen Borders Code,318 which applied from 13 October 2006,319 also integrated and amended all the previous rules concerning internal borders.320 As regards external borders, the Code repealed the relevant provisions of the Schengen Convention; one Schengen Executive Committee Decision; the: Common Manual (as amended by EC measures); and the legislation on border signs; the stamping of documents; and the power to amend the Common Manual.321 Subsequently, the Code k^^^m»nd^Ajm^m.JK,C3siom.322 The Commission plans further amendments, pursuant inter alia to planned legislation on an entry-exit system.323 The Code confers powers upon the Commission to adopt implementing measures as regards three of its eight attached Annexes; the Commission can also adopt implementing measures as regards border surveillance.324 All these measures are subject to the 'regulatory procedure with scrutiny', which entails greater scrutiny power for the EP; this process will likely be replaced by the 'delegated acts' procedure introduced by the Treaty of Lisbon at some point.325 Ta.date, one imglenaenty^^ (see the discussion below).326 Certain decisions relating to external border crossing (such as the penalties for crossing at unauthorized points or times) have been left to the Member States' 318 Reg 562/2006 ([2006] OJ L 105/1). All further references in this section are to the Borders Code Reg, unless otherwise indicated. 319 Art 40. 32" 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 remained in force (for both, see n 310 above). The latter Decision has not been amended or repealed. Some provisions relating to the abolition of interna] border controls were also deleted: see 3.5 above. Also, the Code deleted Annex 7 to the Common Consular Instructions (on which, see 4.7.1 below). '** Firstly, Reg 296/2008 ([2008] OJ 1. 97/60) regarding 'comitology', amended Arts 12, 32, and 33. Secondly, Reg 81/2009, regarding the use of the Visa Information System at borders ([2009) OJ L 35/56), amended Art 7(3). Thirdly, Art 55 of the visa code (Reg 810/2009, [2009| OJ L 234/1), amended Annex V. Finally, Reg 265/2010 (|2010| OJ L 85/1) amended Arts 5(l)(b) and 5(4)(a). The Code has not been consolidated. m See the Commission's 2010 work programme COM (2010) 135, 31 Mar 2010. On the entry-exit plans, see further 3.6.2 below. 324 Arts 12(5), 32, and 33, as amended by Reg 296/2008 (n 322 above). The implementing powers concern Annexes III, IV, and VIII, which concern signs for separate lanes at border crossings, stamping of travel documents, and proof that the border has been crossed without travel document being stamped. 325 See 2.2.2.1 and 2.2.3.1 above. 326 [2010] OJ L 111/20. The legality of this measure has been challenged, on the grounds that the Council exceeded its powers to implement the Regulation when adopting it: Case C-355/10 EP v Council, pending. External border controls: basic rules 185 discretion, but there is nevertheless an obligation for Member States to inform the Commission of these decisions; the Commission must then inform the public.327 The Commission has also drawn up a Recommendation containing practical information for border guards.328 Moving on to the content of the Schengen Borders Code, it comprises forty Articles in four Titles, with (as noted already) eight attached Annexes.329 Title I sets out the purpose of the Regulation, along with rules on definitions and the scope of the Code.330 It is specified that while the Regulation applies 'to any person qxq$mq& the internal or external bjcjr4er§ of Member States', it is 'without prejudice to' the rights of persons enjoying EU free movement rights or to 'the rights of refugees and persons requesting international protection, in particular as_ regards non-refoulement'.331 The first of these categories follows from the priority of EU free movement law over Schengen rules,332 while the latter arguably follows from the general principles of EU law.333 Moreover, the Code does not address the issue of rules on local border traffic, which was the subject of separate legislation adopted some months later.334 Title II of the Code, which contains three Chapters,"'' sets out the main rules concerning external borders. Chapter I comprises two Articles, which set out in turn the rules concerning crossing external borders and the conditions for entry at the external borders.3"' Borders must be crossed at official points during official hours,35 and notice of opening hours must be provided. Derogations may be permitted for pleasure shipping or coastal fishing;3''1 seamen under certain conditions; individuals or groups where there is a 'requirement of a special nature' (subject to certain conditions); or individuals or groups in an unforeseen emergency."'' Penalties must be imposed by Member States for breach of the obligation to cross at official points; these penalties shall be 'effective, proportionate and dissuasive', and this obligation is 'without prejudice to... [Member States'] international protection obligations'.'"' These two express provisions respectively 7 practical examples 327 Arts 34 and 37; this information is also available online at: ). See 3.4.1 above. External border controls: basic rules 191 important, because information on the persons concerned will nevertheless be stored in the VIS.381 These amendments to the Code will be relevant to the future establishment of an entry-exit system.382 But it must be noted that an entry-exit system cannot function as long as a derogation applies at entry, and in the absence of an obligation to enter information on visa holders at exit points as well (on which, see below). The potential difficulties in applying such a system would obviously be multiplied if it applies to non-visa nationals as well, as the Commission intends, although the Commission has suggested the parallel development of a 'trusted traveller' system in order to avoid bottlenecks.383 THES If the VIS begins operations in 2010 as planned, ^^ero^tiojas in the VIS I Regulation and the Borders Code concerning the use of biometrics in the VIS I upon entry will expire in 2016 which is after the time frame in which the | Commission estimates that an entry-exit system could begin operations.384 It should also be recalled that the initial three-year derogation from the use of fingerprint checks at external borders in the VIS Regulation will overlap with the rolling out of the VIS—so the impact of the use of the VIS at external borders will be limited for some time.383 Moving on to controls on exit, checks must include a check on the validitv and genuineness of travel documents and 'whenever possible' a ygijrfxodAkm that the person is not a threat to 'public policy, internal s^uxky, or the international relations of any of the Member States'.381' Exit checks may also involve verification of a visa, checks as to whether a person overstayed, and checks mthejyiLor. national databases387—although of course the required check 'wherever possible-on whether the person is a threat to for example, public policy would seem to entail a mandatory SIS check. Member States will also have an option, once the VIS becomes operational, to check persons on exit in the VIS for the purposes of verification.388 Again, these provisions are linked to the future development of an entry-exit system.389 Furthermore, once the VIS becomes operational, Member States will have an option to search the VIS, presumably either on entry or exit, to check persons in the VIS for the purposes of identification (a 'one-to-many' search).390 381 See 4.4.1 below. 382 See 3.6.2 below. 383 See ibid. 384 COM (2008) 69, 13 Feb 2008. 385 On the timeframe to roll-out the VIS, see 4.8 below. This point is also relevant to the practicalities of imposing VIS checks at land borders. It remains to be seen which non-Member States bordering the EU, if any, are still subject to a visa obligation by the time that the VIS is rolled out to these neighbouring regions. 386 Art 7(3)(b). w Art7(3)(c). ||388 ^rt 7(3)(c)(i)j as amended by Reg 81/2009 (n 322 above). There is no derogation permitted. 3"' See 3.6.2 below. 39(1 Art 7(3)(d), inserted by Reg 81/2009 (ibid). There is no derogation permitted. 192 Border Controls Thorough checks will take place, if possible, in a non-public area, it the request of the person concerned.391 Persons must be given information about the purpose of the check and the procedures applicable, and may request the name or service number of the border guard(s) carrying out the check and the location and the date of crossing.392 Both these provisions should contribute to the objective of ensuring fair treatment during border checks. Finally, the information which must be registered at the borders is listed in Annex II to the Code:393 the names of the border guards; any relaxation of checks; the issuing of documents at the borders; persons apprehended and complaints; persons refused entry (grounds for refusal and nationalities); information on the security stamps used and the guards using them; complaints from persons subject to checks; police or judicial Iaction; and particular occurrences. These amendments should make a useful contribution respectively to ensuring reasonable behaviour by tadstLguards and to combating corruption or other criminal activity regarding falsified documents. It woial^se^^eniiior^usefu^hftli^ Member States are obliged to provide for separate lanes at airports for EU _ and EEA citizens arid their family members, on the one hand, and for all (other) third-country nationals, on the other hand. They have an option as to whether to provide for separate lanes at sea and land borders.394 As noted already, the Code provides for the possible relaxation of checks in limited circumstances, 'as a result of exceptional and unforeseen circumstance^ which are 'deemed to be those where unforeseeable events lead to traffic of such intensity that the waiting time at the border crossing point becomes excessive, and all resources have been exhausted as regards staff, facilities and organisation'.395 Iji that case, entry checks must take priority over exit checks, and there is anyway an obligation to stamp each travel document on entry and exit.396 Member States must submit an annual report on the relaxation of border checks to the EP and Commission,397 but there is no information available on these reports. Next, travel documents (usually passports) must be SJsUJjjjgjl, wlierijill third-cojantry nationals cross the border, both on entry and exit, regardless of whether ■■ the travellers are subject to a visa obligation or not.398 There is an exemption, for third-country national family members ofEU citizens if they hold residence cards, in accordance with EU free movement law.399 There are also express exemptions for heads of state and dignitaries, certain transport workers, and to nationals of Andorra, San Marino, and Monaco. The obligation might also '[exceptionally' " Art 7(4). 392 Art 7(5). 353 See Art 7(7). 14 Art 9, which took over the provisions of a 2004 Decision on this issue (n 311 above). 15 Art 8(1). Arts 8, 10, and 11 took over the provisions of Reg 2133/2004 (ibid). 16 Art 8(2) and (3) respectively; on stamping of documents, see below. 397 Art 8(4). m Art 10(1). The detailed arrangements for stamping are set out in Annex IV (Art 10(4)), ^ Art 10(2), interpreted a contmrio; see 3.4.1 above. External border controls: basic rules 193 thia passage clarifies the purposi be waived where stamping a travel document 'might cause serious difficulties' for an individual; in such cases, a separate sheet has to be stamped to record entry and exit.400 1»' If a travel document is not stamped on entry. Member States may presume that the person concerned does not fulfil the conditions for the duration of stay in the Member State concerned.401 This presumption can be rebutted by the traveller,402 but if he or she cannot rebut it, they may be expelled.403 The Court of Justice has confirmed that there is only an option, rather than an obligation, to expel the person concerned in this case,404 although arguably the position will be affected in future by the application of the Returns Directive.405 The Commission reported on the application of the pjmi^n&Qn^sjan^ of documents and presumptions of irregular stay in 2009.406 According to this report, there have been no problems applying the stamping obligations fully; in particular the obligations have not caused long waiting times at borders. Difficulties have arisen where a passport was full, where the stamping was confusing or illegible (due to stamping on top of a previous stamp), where children did not have a separate passport, and as regards whe of a third-country national with a residence permit from a should be stamped. In the latter case, the Commission tak the passport r^^rtatjbe^lajjmeid, because a risk of exceedin period of short stay does not arise. While this is a sensible a theless there is no express exception to this end in the Cod 400 Art 10(3). 401 Art 11(1). 41,2 Art 11(2) and Annex VIII. 4!)4 Joined Cases C-261/08 Zurita Garcia and C-348/08 Choque Cabrera, judg )iot yet reported. Although the Spanish text of the Code states that the person 'r Court gave priority to the wording in all of the other language versions, whii is an option to expel. With respect, it is not clear from the facts of these cases was a failure to stamp the documents of the persons concerned; the Court (and Advocate General) sirnply assumed that Art 11 of the Code was applicable. The judgment also interpreted Art 23 of the Convention, which will be replaced by the Returns Directive (Dir 2008/115 ([2008] OJ L 348/98) as from 24 Dec 2010 (Arts 20 and 21 of the Directive). On this Art, see 7.7 below. 405 Dir 2008/115 (ibid); see 7.7.1 below. The Directive did not amend the Borders Code and there is no express provision in the Directive indicating how the prima facie mandatory expulsion set out in Art 6 of the Directive relates to the optional expulsion referred to in Art 11(3) of the Code. However, the Directive does specify that it is 'without prejudice' to 'more favourable provisions' in the 'the Community acquis relating to immigration and asylum' (Art 4(2) of the Directive). This must surely mean that the optional expulsion in the Code must take precedence over the mandatory expulsion in the Directive, where the two rules overlap. It should also be noted that Art 11(1) of the Code only provides for an option, not an obligation, to presume in the first place that the conditions for stay have been breached in the event that the documents in questions are not stamped. On the relationship between the Code and the Directive on this point, see also the opinion in Zurita Garcia (ibid), note 23, which, with respect, fails to take Art 4(2) of the Directive into account. m COM (2009) 489, 21 Sep 2009, pursuant to Art 10(6). 407:/The same point could be made where the person concerned holds a long-stay visa, but the Commission does not mention this. The Commission's argument raises the question whether the list of exceptions from the stamping obligation set out in Art 10(2) and (3) is exhaustive or non-exhaustive. The text of the Code does not make this clear, although the exclusion of third-country Santino 194 Border Controls Commission does not see the need to create an exception to the stamping obligation for lorry drivers, who are the main group affected by stamps filling up a passport early, due to the risk of illegal immigration; it argues that an entry-exit system will eventually address their position.41"1 The Commission does intend, on the other hand, to propose an express exception from the stamping obligation for railway workers who regularly travel in and out of the hU. Also, the Commission takes the view that a stamping obligation cannot be applied at internal borders, even where border checks are reinstated pursuant to the applicable provisions of the Code,4"'' given that the re-introduction of those checks cannot alter the total length of authorized stay. This is again undoubtedly a sound argument, but not expressly set out in the wording of the Code.41" As for the presumption of illegality, most Member States do not collect statistics on the numbers of persons who are found on the territory or detected while exiting without an entry stamp, or who are able or not able to rebut any presumption of irregular stay, although in fact the Code does not require them to do so."1 The Commission rightly points out that this information would obviously be useful in order to assess the effect of the provisions on stamping, but the fault here lies with the legislation, which failed to set out an obligation in this respect. Equally, most Member States have not informed the Commission about their practices on the presumption of illegal stay, although on this point the Code does set out an obligation.11- It is not clear from the information supplied to the | Commission whether or not Member States always presume that the absence of | an entry stamp indicates an irregular stay. Ultimately, the Commission draws no conclusions about the rules in the Code on the presumption of an illegal stay, and does not mention the issue of the link between these rules and the Returns Directive (see the discussion above). national family members of HU citizens with residence cards from the stamping obligation is not expressly set out—-it follows from an a contrario reading of Art 10(2) along with Art 3(a). It might be possible to argue (although the Commission does not) that the stamping obligation does not apply to such persons because the Code only applies to persons admitted for a short stay in the first place (see Art 3(1)). But if that were the case, why does the Code contain references to persons with long-stay visas and residence permits in other provisions (Art 5(1)(b) and (4)(a), for instance)? " See 3.6.2 below. Note, however, that an entry-exit system is not forecast to be operational until 2015, so this would not alleviate the position of the lorry drivers in the meantime. The Commission seems unwilling to consider any special solution for this category of persons (the creation of a special permit, a system of employers' liability, reciprocal agreements with states of origin on special travel documents, or the development of a sui generis entry-exit system for the meantime). '''' See 3.5 above. '" Art 28 provides that '|\v|hcrc border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis'. It might be deduced that Art 10(1) is not a 'relevant provision' lor this purpose, but it might be better to specify exactly what these 'relevant provisions' are in the interests of legal certainty. Tins is a distinct issue from the obligation to provide statistics on refusal of cutty decisions (Art 13(5)). Art 11(2), final sub-paragraph. External border controls: basic rules 195 Next, the Code contains basic rules on border surveillance; addressing the-PJjrgoses of surveillance; the t^pejs^£uni& to be used; the numbers of border guards to be used and their methods; and the requirement to survey sjejasjtiy£ jreas in particular.413 Further measures concerning surveillance may be adopted-in accordance with a comitology procedure, involving participation of the EP.414 An implementing measure relating to maritime border surveillance was adopted in 2010.'"' This Decision only concerns surveillance operations coordinated by Frontex, so is discussed further below.416 The Code then sets out rules concerning Ky&lsaLfifxntry, which are.jQhyi-ously among its mQ^jrrippr.tant provisions. As noted above, the general rule is that persons who do not meet the criteria for admission must be denied entry, subject to certain exceptions;417 more detailed rules on the procedure for refusing entry are set out in an Annex to the Code.418 There are also procedural rights for persons denied entry. Entry may only be refused 'by a substantiated decision stating the precise reasons for the refusal', which is given by means of a standard form annexed to the Code. The decision must be taken by a legally empowered authority, must take effect immediately, and the decision form must be given to the person concerned, who 'shall acknowledge receipt'.419 Persons„rrfuseji,£njyr^^ the appeal 'shall be con- ducted in accordance with national law'. Member States must give the person concerned a written list of contact points who could provide information on persons who could represent him or her. But appeals 'shall not have suspensive effect'. If successful, an appeal must entail that the cancelled entry stamp is corrected; this is '[w]ithout prejudice to any compensation granted in accordance with national law'.420 Unsurprisingly, the Code specifies that border guards must ensure that persons refused entry shall not enter the territory of the Member States.421 Member States must collect statistics on the numbers refused entry; their nationality; the grounds for refusal of entry; and the type of border where entry was refused. This information must be transmitted annually to the Commission; which must publish it every two years.422 It is possible that !^;s&£rc£d§JJ3yn^^ Dinectisje, which gives Member States an option (but not an obligation) to exclude persons refused entry in accordance with the Borders Code from the scope of that Directive, which contains its own specific rules on procedural rights and related issues such as detention. Member States may also exclude from the scope of that Directive those persons 'who are apprehended 413 Art 12(l)-(4). 4,4 Art 12(5), as amended by Reg 296/2008 (n 322 above). 4,5 See n 326 above. 416 See 3.10.1. 417 Art 13(1); see the discussion of Art 5 above. 418 Art 13(6), referring to Annex V, Part A, since amended by Art 55 of the visa code (n 322 above). Point 3 of this Annex refers to the Schengen and EU rules on carrier sanctions (see 7.5.1 below). 4,9 Art;13(2) and Annex V, Part B. 420 Art 13(3). 421 Art 13(4) 422 Art 13(5). For more on this, see 3.11 below. 196 Border Controls or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State'.423 If Member States take up these options, the former category of persons will at least benefit from the procedural rights set_out in the Borders Code.424 But more problematically, the latter category of persons will not benefit from any procedural rights whatsoever as a matter of EU law; this position is impossible to defend. Arguably this category of persons falls sufficiently within the scope of EU law to be covered by the general principles of EU law, and can therefore derive procedural rights in that connection. In any event, the Returns Directive requires that for both categories of persons, Member States must 'ensure that their treatment and level of protection are no less favourable than' the rules in that Directive regarding limitations on use of coercive measures; postponement of removal; emergency health care; the needs of vulnerable persons, and detention conditions; and must also 'respect Next, Chapter III of Title II concerns cooperation between national authorities, as well as staff and resources for border controls."12'' Member States must deploy 'appropriate staffand resources' in order to carry out border checks as provided for in Chapter II, 'to ensure an efficient, high and uniform level of control at their external borders'.12 Checks must be carried out by border guards in conformity with national law; the guards must be sufficiently specialized and trained, and encouraged to learn relevant languages. Member States must ensure effective coordination of all relevant national services, and notify the Commission of the services responsible for border guard duties.12" As for cooperation between Member States, there is a general requirement of assistance and cooperation in accordance with other provisions of ("ode. They must also exchange relevant information. The code refers to the role of Frontex in coordinating border operations, as well as Member States' role as regards operational coordination, including the exchange of liaison officers, as long as this does not interfere with the work of the Agency. Member States must provide for training of border guards on border control and fundamental right?, taking account of the standards developed by the Agency.t2'' Furthermore, there Art 2(2)00 "I'I'ir 2008/115 (n 404 above). ;;; Conversely, of course, if a Member State does not invoke the exclusion, persons refused entr; at the border will benefit from the provisions in both the Returns Directive and the Borders Code Presumably, m the event of overlap, the rule setting the highest standards will apply, pursuant t Art 4(2) of the Returns Directive. Art 4(4), Dir 2008/115 (n 404 above). The obligation to respect the principle of noil refouleinent is not further defined (cf also Art 5 of the Directive), although note that in any ever the 1 lirective is subject to more favourable provisions in other hU immigration and asylum measure (Art 4(2)). See further 7.7.1 below. ' Arts 14-1" Art 14. «* Art 15; see Art 34(l)(d) on notification. «' Art 16. External border controls: basic rules 197 is a sr^cmJLrule^cj^^ of those Member States not yet fully applying the Schengen rules. Until the Schengen acquis is fully applicable to them, those States can jointly control their borders, without prejudice to Member States' individual responsibility. To this end, Member States may^ojjclude bikjtexal agreements, which they must inform the Commission of.430 Finally, Chapter IV of Title II of the Code sets out specific rules for border checks in certain cases, concerning respectively different types of borders and different categories of persons.431 For instance, the rules on crossing by road in particular permit drivers usually to stay in their vehicles during checks; the rules for checking trains en route to or from third countries have been amended to allow for 'juxtaposed control' in third States; the rules on air travel contain entirely new provisions on private flights; and the rules on sea borders were amended in particular to strengthen the rules on control of cruise ships and pleasure boats and to tighten the definition of fishing vessels which will not generally be checked. As for checks on particular categories of persons, there are six categories of persons subject to ^gi%lMm$U^$U^A^Qi$Xa££; pilots and other aircraft crew; seamen; holders of diplomatic, official, or service passports and of documents issued by international organization; cxo^sJmd^^evmkexs; and minors. For example, the special rules for Heads of State and their delegation exempt them entirely from border checks; holders of diplomatic, official, or service passports and documents issued by international organizations are exempt from subsistence requirements, must be given priority when crossing, and cannot be refused entry by border guards unless the guards first check with foreign ministries; cross-border workers need not be subject to a check every time they cross the border, if they are 'well known' to the border guards due to their 'frequent crossing' and they were not listed in the SIS when an initial check was carried out; and minors must be the subject of 'particular attention' from border guards, to ensure that accompanied minors are with persons entitled to exercise parental care and that unaccompanied minors are not leaving the tsodtoiy against the wishes of the person with parental care of them.432 3.6.2. Entry-exit system The next major step in the develop be the creation of an 'entry-exit' s; 430 Art 17; see Art 37 on notification. 431 Arts 18—19. The detailed rules appear i | 432 See subsequently the action plan on un and the Council conclusions on this issue (Jlj regular collection of data and risk assessment Santino Op 20 november 2017 heeft de Raad de verordening inzake Op 20 november 2017 heeft de Raad de verordening (2017/2225) inzake een -inreis-uitreissysteem en de verordening tot wijziging van de Schengengrenscode in verband met het inreis-uitreissysteem aangenomen. 198 Border Controls month period 'Non-visa national' is the term used to describe citizens of a number of countries who are country nationals. Such a system was suggested by the Commission in a detailed communication in February 2008, which also addressed the related issues of a 'trusted traveller' programme and a system of electronic travel authorization.433 The Commission is planning to propose legislation on an entry-exit and trusted traveller systems, and a communication on electronic travel authorization, in 201 1.434 Visa national' is the ... n^mam- r term used to describe According to the 2008 Commission communication, the main purpose of countries whTare tne entry-exit system would be to identify third-country nationals who had required to have a 'overstayed' their period of permitted stay in the Union, whether or not they visa to enter the _ . i i - r schengen area for a ■ were subject to a visa obligation. Such persons are the biggest category of certain penod of timeB jrre„ujar migrants in the EU.435 The system would record data on 'the time and up to the maximum o™ 00 J 90 days every six place of entry, the length of stay authorised, and the transmission of automated alerts' to the authorities on overstayers, once they violate the rules in question and also when they leave the EU. In case of change of status (justified overstay, or a grant of residence), the information concerned would be updated. It would be necessary for the VIS to be fully operational before the entry-exit system exempt from requiring a was applied to visa nationals.4"' As for non-visa nationals, they would have to Schengenamatora S'vc their biometric data when they first entered the EU once the new system certain period of time up was applicable: the Commission admits that this 'could potentially complicate to the maximum of 90 rr iii'i • Wm days every six month the management of passenger flows, especially at certain land border crossing period ■ , points. These problems, according to the Commission, could be addressed by intro-ducmg, in conjunction with the new entry-exit system, a new category of'trusted traveller' for certain third-country nationals (again available to both visa nationals and non-visa nationals), based on a pre-screenmg process offered on a voluntary basis. These persons would be exempt from some of the conditions of entry at the border (regarding the purpose of stay, means of subsistence, and absence of threat to public order), and would also be admitted through automated border gates, which would register their identity and travel history as well as check their biometrics (fingerprints and photographs) against their travel document or database. The automated gates could also be used by EU citizens, nationals of EEA States, Swiss nationals, and family members of such persons, provided that they held biometric passports, with the proviso that in accordance with free movement law, their movement would not be recorded. If The 'common vetting criteria' for this status for third-country nationals could be, 'as a minimum ... a reliable travel history (the person should not have exceeded 4,1 Communication on the next steps in border management (COM (2008) 69, 13 Feb 2008). *''' Sec the Commission's action plan for implementation of the Stockholm programme (COM (2010) 171, 20 Apr 2010). n" See the impact assessment attached to the Commission communication (SLC (2008) 153, 13 |-eb 2008). On the VIS, see 4.8 below. External border controls: basic rules 199 the 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 the criteria for obtaining multiple entry visas.437 Applicants for this status would have to apply at consulates or common application centres. In the Commission's-i view, the entry-exit system and the accompanying trusted traveller programme could be applicable by 2015. Finally, the possible electronic system of travel authorization would apply to non^^nationals, 'who would be requested to make an el^clrcmji^pplkattCtti. supplying, injidvanc^^fjgssslling, data identifying the traveller and specifying the passport and travel details'. This data would be used to verify that the person concerned fulfilled the entry conditions 'before travelling to the EU, while using a lighter and simpler procedure compared to a visa'. While waiting for the Commission's legislative proposal regarding an entry-exit system, the Council conducted a questionnaire to determine Member States' positions on the planned system,438 and conducted a pilot project to register the number and categorization of all persons crossing the Schengen external borders during one week in September 2009.4W There were 12.9 million entries or exits in a single week, comprising 9.3 million EU citizens and other persons with free .movement rights, 2.1 million non-visa nationals, and 1.5 million visa nationals; 1.1 million people crossed at sea borders, 5.0 million at land borders, and 6.8 million at air borders. 3.6.3. Assessment Taken as a whole, the Borders Code is clearly vastly better drafted than the texts it replaced, although it has several flaws. There are significant improvements as regards procedural rights, fair treatment, accountability, and transparency, but several provisions are unclear (as regards the use of databases on EU citizens,, exit checks and the exercise of police powers) or ill-considered (the rules on exit controls, which are arguably impractical). The Code could more clearly have addressed the issue of whether there is a right to entry if the relevant conditions are satisfied, although it is arguable, as noted above, that a right to entry can be inferred from the wording of the entry conditions rules set out in the Code. While the additional provisions concerning asylum are welcome, the opportunity was missed to rethink the conditions for entry and to provide for detailed provisions ensuring that the right to asylum is respected at external borders; the latter 437 On those criteria, see 4.7.2 below, w Council docs 14334/08, 16 Oct 2008 and 15630/08, 1 Dec 2008. The questionnaire did not examine the parallel issue of developing a 'trusted traveller' system. Council doc 13267/09, 26 Sep 2009. 200 Border Controls issue is complicated by the controversial and highly questionable provisions of the EU's asylum procedures Directive.440 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 of the practical implications of this particular issue when the Commission assessed the impact of the original proposal for the VIS Regulation.441 The derogation from use of the VIS upon entry set out in the Borders Code is drafted quite narrowly, and it may not prove feasible to spend time assessing the impact of granting 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 neighbouring 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 operational and applies to all non-visa-nationals at the Commission intends, then the issue will present itself again—all the more so given that an entry-exit system would require non-EU citizens to be checked upon exit as well as entry. As for the stamping of documents, the rules in the Code have proved practical according to the Commission's assertions, although it does not follow that the 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 presumption regarding irregular stay is actually applied. This brings us to the planned entry-exit system. It should first of all be noted that in light of EU free movement law, it would not be legal to apply such a system to EU citizens and their family members, including citizens of non-Schengen. States or Schengen associates. Also, there is little point in applying this system to non-visa nationals, given the relatively limited risk of overstay which they pose in practice as compared to the extra costs and complications that would result from applying the system to them. If nationals of a particular country not subject to visa obligations in fact have a high rate of overstaying, the obvious solution is simply to impose a visa obligation on nationals of that country, rather than impose an entry-exit system on all non-visa nationals. While an entry-exit system, if it 440 See 5.7 below. 441 See SEC (2004) 1628, 28 Dec 2004. This impact assessment simply states (at p 17) that 'time will be lost at entry and exit points by providing and checking biometric data', without assessing tin feasibility of checking such data in all cases of entry. On the same page, the Commission estimau's the 'very significant' financial costs of the VIS at EU level and for national visa authorities, but tins does 'not include the costs for the border crossing points as these costs cannot be estimated at tur present time'. 442 The absolute obligation in the Borders Code to stamp the passports of third-country nation als, even when border controls are relaxed, will already slow down any attempt to clear a backl":1 at the border crossing. Schengen Information System 201 works as planned, will identify overstayers effectively, it will not assist authorities to find them if they have disappeared. It is assumed that an entry-exit system will either be integrated into the VIS or applied seamlessly in parallel with it. The costs and complications of the development of a completely separate system do not bear thinking about. In any event, any system will have to be subject to robust data protection rules to avoid the effect of erroneous identification, and the penalties for overstay will have to be proportionate and take account of legitimate grounds for overstay such as force majeure, applications for international protection, .ind humanitarian reasons. As for the other plans for future developments, an authorized traveller system would probably be essential if an entry-exit system is introduced, in order to ensure that delays at border crossings do not become intolerable. Again, such a system could not be used to store information on the movements of EU citizens, citizens of Schengen associates, and their family members. It will be essential to ensure that the rules for registration in this system are fair and transparent, and that data protection rights apply fully to the vetting process. On the other hand, the Commission has not yet made a very convincing case for the idea of developing a system of electronic travel authorization. 3.7. Schengen Information System443 The Schengen Information System (SIS) is a well-known and long-established element of the Schengen border control system, with the main purpose (in the immigration context) of making available to the relevant national officials a common list of names of persons who should not be allowed to enter the Schengen area. The current system has been amended and the EU also intends to establish a second-generation System (SIS II), which has been bedevilled by operational problems. The current SIS and future SIS II will be considered in turn. 3.7.1. Current Schengen Information System The current SIS was initially established by Articles 92-119 (Title IV) of the 1990 Schengen Convention,444 as applied from March 1995. Further rules are set out in various decisions of the Schengen Executive Committee,445 including the Decision establishing the Sirene Manual, which governs subsequent exchanges of information following a 'hit' in the SIS.446 Despite its dual application for immigration purposes on the one hand and criminal law and policing purposes on the 443 On the general legal framework governing SIS and SIS II, see 12.6.1.1 below. 444 [2000] OJ L 239. 445 Ibid. For a list of these measures, see 12.6.1.1 below. 446 [2003] OJ L 38.