Regulation (EU) 2016/399 (Schengen Borders Code)

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Regulation (EU) 2016/399

Title: Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Community code for people crossing borders
Short title: Schengen Borders Code
Scope: European Union without Ireland including Switzerland and the EEA states Iceland , Norway and Liechtenstein
(see also the numerous exclusions → Schengen area )
Legal matter: Administrative law , immigration law
Basis: TFEU , in particular Article 77 (2) letters b and e
Procedure overview: European Commission
European Parliament
IPEX Wiki
Date of issue: March 9, 2016
Release date: March 23, 2016
Come into effect: April 12, 2016
Replaces: Regulation (EC) No. 562/2006
Last change by: Regulation (EU) 2019/817
Effective date of the
last change:
June 11, 2019
Reference: OJ L 77 of 23.3.2016, pp. 1-52
Full text Consolidated version (not official)
basic version
Regulation has entered into force and is applicable.
Please note the information on the current version of legal acts of the European Union !

The Schengen Borders Code is a regulation of the European Union . It regulates border crossing at the internal and external borders of the so-called Schengen area and in large areas supersedes the national laws of the user states on border crossing and the modalities of border control.

The regulation is a so-called codified text . With it, the original Regulation (EC) No. 562/2006 of the same name is being redrafted. Six amending regulations and one amendment to the Croatian Accession Treaty are taken into account. The provisions are renumbered. A concordance table can be found in Appendix X.

scope

Full user states of the Schengen Borders Code (light and dark blue), partial users (olive) and non-users (green)

The regulation is a legal provision of the European Union; however, its scope does not coincide with the territory of the member states of the European Union. The regulation does not apply in Great Britain and Ireland , which do not participate in the adoption of common entry and border control regulations. Denmark has reserved the right to adopt such provisions on a case-by-case basis, and has done so for the Schengen Borders Code and the amending ordinances issued to date. Norway and Iceland are linked to the Schengen acquis through association agreements and have undertaken to transform the content of the regulations into their national law. The same applies to Liechtenstein and Switzerland . Cyprus is basically the user of the regulation, as are Romania and Bulgaria ; however, the identity checks to and from these states by other Schengen states have not yet ceased.

Not all participating countries with their entire sovereign territory are always members of the Schengen area and thus also of the Borders Code. Because of the various exclusions → Schengen area .

Content of the regulation

The regulation is divided into a general part (Title I), a section on the regime at the external borders of the Schengen area (Title II), a section on the modalities at the internal borders (Title III) and a section with final provisions (Title IV).

Title I with the general provisions contains definitions of terms (Article 2) and a clarification of the scope (Article 3). The Schengen Borders Code applies without prejudice to the rules on the free movement of EU citizens under European law and the special regulations on the admission of refugees to all persons crossing the borders. This makes it clear that the privileges for EU and EEA citizens including Swiss citizens are not restricted, but that these citizens cannot demand to remain uncontrolled. Refugees seeking admission must be admitted under international law; For example, the general entry requirements (national passport, possibly visa and proof of livelihood security) do not apply to them. But they are (to live in shared accommodation, for. Example, assignment to a particular location, the obligation restrictions on those seeking protection Residenzpflicht subject).

Article 4 refers to the primacy of the EU Charter of Fundamental Rights and the Geneva Refugee Convention in application of the regulation.

Border controls at the external borders of the Schengen area

Articles 5 to 14 are at the heart of the regulation. They define the entry requirements for entering the Schengen area.

General entry requirements

The external borders of the Schengen area may in principle only be crossed at approved border crossing points (Article 5).

Article 6 lays down the general entry requirements for third-country nationals (here meaning all citizens who are not nationals of the EU, the EEA or Switzerland, including their family members who are third-country nationals). For those people who plan to stay in the Schengen area for no longer than 90 days in a 180-day period, these are (see Article 6 paragraph 1):

Anyone who has a residence permit or a long-term visa in a Member State other than the one to which he intends to enter is permitted to enter that Member State for the purpose of onward travel, even if all of the above conditions are not met unless there is a national entry ban for the person concerned (Article 6 (5) (a)).

No discrimination in border clearance

Article 7 obliges to border controls that are non-discriminatory with regard to gender, race, ethnic origin, religion and belief, while respecting human dignity . The measures taken are subject to the principle of proportionality of the means .

Scope of border police checks, introduction of control lanes

Marking of the entry lane for EU, EEA and Swiss citizens entitled to free movement in accordance with Article 10

Article 8 defines the scope of border controls. In the case of persons enjoying free movement (in addition to Schengen nationals and their family members, this also includes citizens of Great Britain and Ireland and their family members, the latter even if they are not British or Irish citizenship ), the control is usually limited to a minimum control which consists of an identity check based on the submitted travel document, during which the document is also checked for forgery features.

For all other persons, so-called third-country nationals , a detailed check is carried out on entry with regard to the requirements specified in Article 6. When leaving the country, a check is carried out to ensure that the maximum length of stay has not been exceeded.

Exceptionally, border controls may be relaxed in the event of a heavy crowd (Article 9).

In order to meet the increased requirements for the control of third-country nationals, special control lanes for persons entitled to free movement must be set up at the borders (Article 10) in order to enable them to enter the country quickly.

Systematic stamping of the passports of third-country nationals upon entry and exit

Border control stamp of entry via the railway border crossing at Spielfeld (Austria). This stamp is no longer used today because after Slovenia joined the Schengen area, this border became the Schengen internal border.
Border control stamp of an exit from the Schengen area via Geneva airport. The arrow pointing out of the room at the bottom left indicates an exit procedure.

According to Article 11, the travel documents of third-country nationals must be systematically stamped not only upon entry but also upon exit. The border inspection posts are not released from this obligation even in the event of a heavy crowd (Article 9 (3)).

In the absence of other registration systems, the exact day of entry and exit from the Schengen area and whether the third-country national has kept the maximum 90-day residence time can currently only be determined from the border control stamp.

If the third-country national is found after entering a Schengen member state without a border inspection stamp, the national authorities may assume that the maximum permitted length of stay has been exceeded and deport him; unless he can prove the time of entry by means of suitable evidence (Article 12).

If the residence time is exceeded upon departure, the German border authorities generally file a criminal complaint because the illegal stay is a criminal offense ( Section 95 (1) no.2 AufenthG).

Third-country nationals who leave the country without a visa-free entry without an exit border control stamp - even if the maximum length of stay is adhered to - may encounter difficulties when re-entering the country because they may not be able to prove that they have not been in the Schengen area for more than 90 days within a period of 180 days has stopped. He then has to make the departure time credible to the border officer in another way (e.g. by presenting the travel ticket, etc.), otherwise he may be refused entry.

The passports of persons entitled to free movement are not stamped; unless the family member of a Union citizen is a third-country national and does not present his / her residence card (Article 11 (2)).

Example: A Serbian citizen who is married to a French person and lives with her husband in Frankfurt am Main wants to enter the Schengen area at Frankfurt am Main Airport from the USA. In this case, the Serb must also present her German residence card when entering the country so that her passport is not stamped. Because as the wife of a Union citizen, she is entitled to freedom of movement; However, this does not result from their nationality (third-country nationals!), but only from the marriage. Only with the residence card can the marital status and the associated free movement status be proven.

The exact modalities of the stamping are regulated in Annex IV of the regulation.

Border surveillance

Article 13 prescribes border surveillance outside the border crossing points (at the so-called green border ). It is carried out by stationary and mobile posts, also with the use of technical aids. It should be so unpredictable, also in terms of the control times, that unauthorized exceeding carries the constant risk of being discovered.

Refused entry

Entry refusal form

Article 14 stipulates that a third-country national who does not meet the requirements of Article 6 must be refused entry. The reasons for this must be communicated to him in writing on a special form. The person concerned can appeal against this, but these have no suspensive effect. If the inadmissibility of the refusal of entry is determined later, the person concerned has a claim for compensation, which consists at least in the cancellation of the relevant endorsements in the passport.

The modalities are regulated in Appendix V.

Training of border control officers, cooperation, special cases

Articles 15 to 20 oblige the Member States to provide sufficient human resources at the external borders (Article 15). The border guards must have qualified training and language skills (Article 16). There is a duty of coordination and cooperation among the Member States. Member States are also obliged to cooperate with the European Agency for the Management of Operational Cooperation at the External Borders (Frontex) (Article 17). Article 18 specifies the details of border controls at an internal Schengen border if one of the two countries is still carrying out checks on persons (for example in the case of Romania , Bulgaria and Cyprus ). In these cases, travelers may only be stopped once in order to carry out entry and exit controls. Article 19 refers to Annex VI of the regulation, which contains extensive detailed regulations on the modalities of border control at the individual border crossings (road crossings, controls on the railways [especially in high-speed trains], in air traffic [also on private planes], and at sea borders [here in particular on cruise ships, pleasure boats, inshore fishing and in the case of ferry connections]). Article 20 provides for special rules for heads of state, pilots, seafarers, diplomats, frontier workers and minors, the details of which are given in Annex VII. Article 21 provides for the possibility of assistance from a Member State. a. by the European Border Guard Team if serious deficiencies have been found at its external borders.

Border control at the internal borders of the Schengen area

An internal Schengen border between Austria and Germany. The “crossing time between 6 a.m. and 9 p.m.” on the additional sign is no longer applicable in accordance with Article 22, as the internal border can be exceeded at any time.

Free passage of the border at every point

In contrast to the external borders, which in principle can only be crossed at the established border crossing points (Article 5), the Schengen internal borders can be crossed at any point regardless of the nationality of the person (Article 22). Existing border crossings and clearance systems may continue to exist - especially in the event of a brief reintroduction of controls - but normally no longer have any practical significance. There is no longer any obligation to only cross the border at the border crossings; this can also be done at any other point. Time restrictions (“border crossing open from 6 a.m. to 9 p.m.”) are no longer applicable; the internal Schengen border can be crossed on any day at any time.

Spot checks at the internal border

Random checks - here on the Danish side of the German-Danish border - are still permitted under Article 23.

According to Article 23, the abolition of systematic border controls does not mean that Member States are no longer allowed to control anyone who crosses the border. However, such controls must not have the same effect as border controls.

If the control is based on general police information and experience regarding possible threats to public safety,

  • it aims to combat cross-border crime,
  • it is not designed as a systematic identity check and
  • is it carried out on a random basis,

is it permissible.

Removal of traffic obstacles, no obligation to remove the handling facilities

The border clearance systems at an internal Schengen border (here: between Germany and the Czech Republic) are often only shut down and can be reactivated if necessary (Articles 24 to 30).

According to Article 24, the Member States must remove all obstacles to traffic at internal borders (e.g. loops that divert traffic onto special control lanes) that are not only used for road safety (e.g. speed limits). However, Article 24, second subparagraph, allows the Member States to maintain clearance facilities in order to be prepared for controls to be reintroduced briefly at internal borders. For this reason, existing buildings are often only shut down, but not finally demolished.

Temporary reintroduction of border controls at an internal border

Article 25 allows the temporary reintroduction of border controls at internal borders in the event of a serious threat to public order or internal security for a maximum of 30 days, in exceptional cases for a further 30-day segment up to a maximum of six months or - in exceptional circumstances within the meaning of Article 29 - from two years. Article 26 lays down the criteria for this.

If such impairment is foreseeable, the intended reintroduction requires the prior notification of the other Member States and the Commission (Article 27). If immediate action is necessary, reintroduction can take place immediately and without prior consultation (Article 28).

In exceptional circumstances in which the functioning of the area without controls at the internal borders is jeopardized as a whole due to serious deficiencies in controls at the external borders, insofar as these circumstances pose a serious threat to public order or internal security in the Schengen internal area or part of it Member States can reintroduce controls at their borders for six months, up to a maximum of two years (Article 29 (1)). Such a measure requires a Council recommendation based on a proposal from the Commission . In turn, Member States may ask the Commission to submit such a proposal (Article 29 (2)). Article 30 lays down the criteria for a Commission recommendation.

Border controls reintroduced after the 2015 terrorist attacks on the French side of the Franco-Belgian border on the A7 motorway .

In the past, border controls were temporarily reintroduced, especially in the event of major events (by Germany during the 2006 World Cup , by several countries before and during the European Football Championships in 2008 and 2012 , by Germany and France on the occasion of the NATO double summit on March 3rd and 4th April 2009 in Strasbourg , Baden-Baden and Kehl , through Germany during the G8 summit in Heiligendamm 2007 ), at which riots were feared. On September 13, 2015, Germany reintroduced controls due to the influx of refugees into Germany at the southern national borders. At the German external borders, border controls were reactivated from June 12 to July 11, 2017 in order to prevent potential criminals from entering the G20 summit in Hamburg . Most recently, during the COVID-19 pandemic , Austria introduced controls at the internal borders with Slovenia and Hungary for 6 months from May 15, 2020 ( Federal Law Gazette II No. 177/2020 ).

The European Parliament and the Council must be notified of any reintroduced border controls (Article 31).

As long as border controls are reintroduced, the rules for an external Schengen border apply accordingly (Article 32). After the end of the measure, the Member State has to report to the European Parliament, the Council and the Commission on the effectiveness of the measure (Article 33). The Commission is obliged to inform the public (Article 34), but confidentiality must also be maintained if necessary (Article 35).

Germany, France and other countries are calling for the maximum duration in accordance with Article 29 to be changed from two to four years due to the risk of terrorism.

On September 27, 2017, the EU Commission issued a statement on the Schengen area and on migration and asylum policy. Germany, France, Austria, Denmark and Norway had previously called for “a targeted addition” to the Schengen Borders Code in a discussion paper.

Final provisions

The final provisions contain modalities for amending the annexes to the regulation (Articles 36 and 37), for setting up a committee to support the Commission (Article 38) and for reporting obligations on the part of the Member States on their residence permits, border crossing points, indicative amounts for proof of livelihood security Border authorities and models of diplomatic cards issued by the Foreign Ministries (Article 39).

Article 40 makes it clear that special rules on local border traffic are not affected by the regulation and will continue to exist. The special regulations of the North African cities of Ceuta and Melilla , which belong to Spain , also remain unaffected (Article 41). Article 42 provides for the notification obligations of the member states about their national regulations. Article 43 introduces an evaluation mechanism to check the implementation of the regulation in the Member States. Article 44 repeals the previous provision - Regulation (EC) No. 562/2006.

The original version of the Schengen Borders Code was mainly valid from October 13, 2006, the new version has been in force since April 12, 2016 (Article 45).

Web links

Individual evidence

  1. OJ. L 105 v. April 13, 2006, p. 1.
  2. This regulation has existed since 2005 (see Regulation (EC) No. 2133/2004 (PDF) of December 13, 2004, OJ L 369 of December 16, 2004, p. 5), (PDF; 83 kB).
  3. BMI press release of April 24, 2006 ( Memento of the original of December 21, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed December 30, 2012. @1@ 2Template: Webachiv / IABot / www.bmi.bund.de
  4. Report on stadionwelt.de from June 3, 2008 ( memento from February 17, 2013 in the web archive archive.today ), accessed on December 30, 2012.
  5. Report of the Berliner Morgenpost from June 4, 2012 , accessed on December 30, 2012.
  6. BMI press release of March 11, 2009 ( Memento of the original of March 4, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed on December 30, 2012, and report from finanzen.net of March 20, 2009, accessed on December 30, 2012. @1@ 2Template: Webachiv / IABot / www.bmi.bund.de
  7. BMI press release of May 9, 2007 ( Memento of the original of December 19, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed December 30, 2012. @1@ 2Template: Webachiv / IABot / www.bmi.bund.de
  8. Temporary reintroduction of border controls , notification from the Federal Ministry of the Interior of September 13, 2015, accessed on May 1, 2016.
  9. spiegel.de October 13, 2017: Denmark fears rejected asylum seekers from Germany
  10. Migration and Asylum Policy, Schengen Area and the Future of Europe
  11. spiegel.de: EU Commission for longer border controls
  12. spiegel.de September 14, 2017: EU Commission wants to enable longer border controls