NEWS: the European Council has approved the update of the Schengen Borders Code!

The reform, born form the huge migration movements of 2015 and the Covid-19 pandemic, aims at rendering the Schengen Area more resilient to these and future situations while guaranteeing that people living in and travelling through the EU can fully enjoy the benefits of borderless travel.

It tackles different issues, like: (i) the instrumentalization of migration, offering solutions to limit it; (ii) large-scale public health emergency, introducing the possibility to adopt centralized EU-wide measures that restrict the access of third-country nationals to the EU; (iii) the reintroduction of internal border controls, offering clarifications on a measure that must, and will, remain one of last resort.

Health emergencies

Should another health emergency like the Covid-19 in 2020 present itself, the new rules grant the possibility – following an EU Council decision – to put in place harmonized temporary travel restrictions at the EU’s external border, guaranteeing a uniformed response that lacked 4 years ago. The new rules grant the EU Council the power to impose testing, quarantine and self-isolation and other health related measures for non-EU citizens entering the EU.

Instrumentalization of migration

The new rules grant Member States the power to limit the number of crossing points, the opening hours and the border surveillances measures, in view of enhancing the security of the borders, without drastically restrict the access to the EU to the outside.

Reintroduction of internal border controls

The reform of the Schengen Borders Code also contains specific clarifications about the existing framework for the reintroduction and prolongation of internal border controls: as it is clearly a last resort measure (fundamentally against the purpose for which the Schengen Area was instituted), it will be possible to apply when there is a serious threat to public policy or internal security, after an assessment of necessity, proportionality and impossibility to use other means.

Moreover, this update limits the maximum duration during of these controls and require that they must be notified to the Commission, to the Member States and to the European Parliament before being reintroduced. The maximum duration is set at two years, with a leeway of 6 months, renewable one time, in major exceptional situations.

The new rules and the clarifications strongly suggest Member States to prefer alternative measures like police checks and cross-border cooperation. Additionally, a new transfer procedure will allow a member state to transfer third-country nationals to the member state from which they arrived directly. The apprehension should take place in the context of a bilateral cooperation framework.

Next steps

Being this a regulation, it is directly applicable in all the EU countries (part of the Schengen Agreement) and will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

The applicability of these updates to the Schengen Borders Code could be tested first-hand by Italy at the G7 Summit, to be held in Italy from June 13th to 15th in Borgo Egnazia, Puglia. In any case, at the moment, the internal border controls that will be applied are based on Articles 25 and 27 of the 2016’s Code, in line with similar measures taken in cases of high-level events and will entail a restriction of free movement from 2 p.m. on June 5th, to the same time on June 18th, 2024.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Article written by Alessia Ajelli, Managing Associate of LCA Studio Legale, Italian lawyer specialized on Italian immigration and citizenship law, and Paolo Grassi, Trainee of LCA Studio Legale.