BAKGRUNN (fra Kommisjonsrekommandasjonen)

(1) The area without controls at internal borders is underpinned by a legal framework of measures supporting operational cooperation and information exchange between police and judicial authorities in criminal matters as well as measures in the fields of visa and return policy. That framework has been developed to compensate for the absence of controls at the internal borders and must function smoothly together with the effective management of the external borders.

(2) The obligation for Member States to assist each other and maintain constant and mutual cooperation is explicitly set out in Regulation (EU) 2016/399 of the European Parliament and of the Council (1). For the proper functioning of the Schengen area, it is equally important for Member States to assist each other with regard to the measures taken in the internal border area.

(3) The Commission closely monitors the situation at internal borders. In the Communication ‘A strategy towards a fully functioning and resilient Schengen area’ (2), the Commission set out, among other actions, a number of key actions to strengthen and promote the mutual trust between the Member States. The 2022 (3) and 2023 State of Schengen reports (4) include an overview of the actions taken by the Commission in that regard over the past few years, in addition to the priority areas for action to ensure a structured, coordinated and common European response to shared challenges.

(4) Since 2022, the controls at internal borders have been the subject of an intensive dialogue between Member States and the Schengen Coordinator (5). They are also at the core of the Schengen Cycle (6) and are a recurrent topic of discussions in the Schengen Council, as part of the Schengen Barometer. Furthermore, since May 2023, the Commission has been carrying out a consultation (7) with the Member States having long-lasting internal border controls in place and the Member States which are affected by such controls (8). The Schengen Coordinator intends to continue the ongoing dialogue with the Member States to support them in the implementation of this Recommendation, as well as regularly report in the Schengen Council on the state of play and progress made.

(5) Recently, the situation at internal borders has also been the subject of two judgments of the Court of Justice of the European Union: first, in a judgment concerning the time-limits for the temporary reintroductions of internal border controls in response to a serious threat to internal security or public policy of the same character (9) as set out in Regulation (EU) 2016/399 and, subsequently, in a judgment concerning the applicable rules with regard to irregular migrants who present themselves at border crossings point where reintroduced internal border controls are carried out (10).

(6) With the proposal for an amendment of Regulation (EU) 2016/399, adopted on 14 December 2021 (11), the Commission proposed to broaden the types of measures that can be used as an alternative to internal border controls, including the measures which could address serious threats to internal security or public policy. Those proposed measures build on Commission Recommendation (EU) 2017/820 (12) on police checks and cross-border police cooperation and as such demonstrate that there is a need for further actions to promote the use of alternative measures to internal borders controls, in response to threats to internal security or public policy.

(7) Considering that the dialogue carried out between the Schengen Coordinator and the Member States revealed that the recommendations concerning proportionate police checks and cross-border police cooperation as set out by the Commission in Recommendation (EU) 2017/820 remain valid, that threats to internal security and public policy in the Schengen area are constantly evolving, and taking into account the judgments of the Court of Justice of the European Union in cases C-368/20, C-369/20 and C-143/22, the Commission considers it appropriate to re-examine Recommendation (EU) 2017/820 and complement it, based on lessons learnt since its adoption in 2017 and the dialogue carried out by the Schengen Coordinator. It is also appropriate to have an overview of other recommendations adopted since 2017 that are relevant for the type of threats identified by the Member States and put forward to justify reintroduced internal border controls.

(8) The 2023 State of Schengen report sets out the priority to enhance internal security of the Schengen area to fight against organised crime and drugs trafficking. As explained in the 2023 State of Schengen report, the dialogue with Member States brought to light that Member States continue to be confronted with serious threats to their internal security and public policy, which require action. It also demonstrated the high variety of measures taken in the context of the notified reintroductions of the internal border controls. This concerns, in particular, the frequency and intensity of the reintroduced controls, and the relations with the other measures undertaken to address the identified threats.

(9) The present Recommendation also builds on Council Recommendation (EU) 2022/915 (13) and should reinforce the effect that Member States give to that Recommendation. Recommendation (EU) 2022/915 sets out a number of solutions to remove identified obstacles in operational cooperation and to further strengthen it when law enforcement officers operate in other Member States to conduct cross-border hot pursuits, surveillances, joint patrols and other joint operations. As illustrated in the workshops organised by the successive Council Presidencies and the Commission in the context of Recommendation (EU) 2022/915, there is a wealth of good practices on operational law enforcement cooperation in some Member States, such as joint police stations, joint patrols on trains, joint permanent operational task forces, joint permanent police brigades ready for field deployment upon request, the use of Police and Customs Cooperation Centres to support operational law enforcement cooperation, technologies to perform police checks without impacting traffic, secured communication solutions working across borders, etc. and the Commission made dedicated funding available in 2023 to support their uptake across the Union. Other Member States should implement these good practices, whenever relevant to their situation. In addition, as set out in the 2023 State of Schengen report, the Commission intends to continue making funding available to step up the spreading of good practices in other Member States.

(10) This Recommendation should take account of the major role that Police and Customs Cooperation Centres play in the fight against cross-border crime, notably in internal border areas. Recommendation (EU) 2022/915 fosters their role, and Directive (EU) 2023/977 of the European Parliament and of the Council (14) provides for effective information sharing with and through Police and Customs Cooperation Centres.

(11) Given that the European Multidisciplinary Platform Against Criminal Threats (EMPACT) has become the key instrument in the Union’s fight against organised crime (15), this Recommendation should take account of the framework that EMPACT provides to counter crime threats effectively.

(12) Moreover, there is a need for reinforced joint actions to fight more effectively migrant smuggling and to counter irregular migration towards the Union and unauthorised movements between the Member States. The cooperation in those areas should be stepped up. The migratory pressure may lead to an intensification of controls in the internal border areas and, where appropriate, based on the rules set out in Regulation (EU) 2016/399, to the reintroduction of controls at internal borders. These controls should, however, be carried out only as long as they cannot be replaced by other less stringent measures, based on risk analysis.

(13) It should be underlined that all the actions taken by law enforcement authorities are to be carried out in a proportionate and non-discriminatory manner.