EU Immigration and Asylum Law: A Commentary 9781782257615, 9781849468619

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EU Immigration and Asylum Law: A Commentary
 9781782257615, 9781849468619

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Preface Immigration and asylum policy have become the object of intense political disputes in many Member States and at supranational level. Their legal dimension is increasingly influenced by EU directives and regulations on various aspects of border controls, visas, immigration and asylum. For that reason, legal and political debates at national and the European level often revolve around the contents of EU legislation which determines the outcome of court cases throughout the continent and guides national parliaments when adopting domestic rules. After 15 years of legislative activities at EU level, it has become difficult to keep an oversight of the diverse instruments adopted on a variety of topics ranging from visa applications in consulates abroad and border controls at sea over rules on the entry and residence of family members, students, seasonal workers or inter-corporate transferees to reception conditions and procedural guarantees for asylum seekers. This commentary pursues the objective of assisting readers to confront the complexity of supranational legislation. The publication of a new directive or regulation in the Official Journal is the beginning of an occasionally cumbersome process of implementation, enforcement and adjudication at national and supranational level. It is the purpose of this commentary to support all those involved in different functions and at various levels in the interpretation and application of European rules: judges at domestic courts, officials working for administrative authorities or national ministries, members of civil society, practicing lawyers, civil servants with an EU institution and academics. To support all these readers required the authors to pay attention to both the seemingly technical detail of a specific measure and the grand scheme connecting different instruments. The chapters of this commentary are meant to achieve both in parallel through a combination of four thematic introductions and more specialised sections on no less than 20 different instruments. In order to provide readers with a comprehensive overview of European immigration and asylum law, this book employs the method of a ‘commentary’ in the German tradition explaining the content and legal context of each legislative instrument article by article. Thus, the chapter on a specific directive or regulation will not usually be read from A to Z like a book. Rather, readers will consult the information on a specific article and will then be re-directed, by means of cross-references, to related information elsewhere in the commentary. By way of example, someone interested in the scope and interpretation of the equal treatment provision in Article 11 Long-Term Residents Directive will open the relevant pages on this article and look for the information he/she requires. In addition, the four thematic introductions provide readers with an outline of overarching legal, constitutional and contextual questions relevant for a better understanding of the policy field as a whole. We have paid attention to bring together a rich collection of different authors with various backgrounds from across Europe. Some are experienced practitioners with a high expertise in the field they are writing on. Others are senior academics or promising young researchers involved in debates about immigration and asylum. Not all authors contributing to this book share exactly the same opinions on underlying themes. Therefore, different views on overlapping issues of interpretation cannot be excluded. But we are united by the ambition to provide our readers with reliable and in-depth materials on a complex area of the law.

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Preface It is a characteristic of immigration and asylum law that its interpretation is the object of legal and political disputes and disagreements. For that reason, reliability and objectivity are meant to be core features of this commentary which intends primarily to present the law as it stands, while always keeping in mind that existing rules may provide a large scope for divergent interpretation. Whenever there is room for disagreement, existing opinions in the literature shall be presented, possibly together with a proposal by the author how the question should be resolved. In doing so, the contributors participate in the doctrinal reconstruction of the law in line with the continental tradition also in areas where no case law exists so far. As a transnational undertaking, it is not the purpose of this commentary to give detailed information on how different Member States implemented European rules. It aims, rather, to describe the content of existing European legislation, to identify potential interpretation issues and to provide arguments for applying such rules. Given that the EU is a multilingual polity, we have invited authors to include case law by national courts from across Europe and academic writing in different languages into their line of argument. We hope that the common methodological concept underlying a commentary articleby-article will be useful for both practitioners and academics working on domestic or supranational immigration and asylum law. Of course, there may be gaps and omissions. The editors and authors therefore appreciate any suggestion how to improve the general scheme or individual chapters in subsequent editions of this book. They should be directed to Prof. Dr. Dr. h.c. Kay Hailbronner Prof. Dr. Daniel Thym University of Konstanz Research Centre Immigration & Asylum Law Universita¨tsstraße 10, D-78457 Konstanz, Germany [email protected]; [email protected]

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Acknowledgments The editors express their gratitude to the assistants of the Chair of European and International Law and the Research Centre for Immigration and Asylum Law at the University of Konstanz. Throughout the preparation of the second edition, Tobias Klarmann, Sigrid Gies and Carolin Beverungen Are´valo invested much time into the project and showed their dedication by editing this commentary. We hope that they will soon complete a successful PhD thesis in the field of refugee law. The editors owe great debt to Sabine Appt who did an excellent coordination work for the first edition. This time-consuming project could not have been completed without the invaluable help provided by the student assistants of the university chair: Greta Baaken, Constanze Bolkart, Christian Goulart McNerney, Stefanie Jetter, Anna Maurer, Jonas Mu¨ller, Moritz Raiser, Felicitas Sauerbrei, Sophie Scholl, Fabian Vichtl, Felix Weber and Linda Wischrath. They did a wonderful job in preparing the word files for the commentary and in checking compliance with the style guide. Our contact person with the publisher, Dr. Wilhelm Warth, deserves credit for his reliable and flexible cooperation.

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List of Authors Carolin Are´valo, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Hemme Battjes, Prof. Dr., Professor at the VU University Amsterdam/The Netherlands Alan Desmond, Dr., DE.MA Fellow, The European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice/Italy Harald Do¨rig, Prof. Dr., Judge at the Federal Administrative (Supreme) Court, Leipzig/Germany, Professor at the University of Jena/Germany Andrea Egbuna-Joss, Research Fellow at the Institute for European Law and the Institute for Federalism, University of Fribourg/Switzerland Astrid Epiney, Prof. Dr., Professor at the University of Fribourg/Switzerland, Managing Director of the Institute for European Law, Vice Chancellor of the University of Fribourg/Switzerland Sigrid Gies, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Kay Hailbronner, Prof. Dr., Professor emeritus at the University of Konstanz and Director at the Center for Immigration & Asylum, Konstanz/Germany, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Julia Herzog-Schmidt, Dr., Advisor of the Information, Counselling and Legal Assistance (ICLA) programme at the Norwegian Refugee Council (NRC), Beirut/Lebanon Constantin Hruschka, Dr., Rechtsanwalt, Head of the Protection Department of the Swiss Refugee Council and Lecturer at the University of Fribourg/Switzerland and Bielefeld/Germany, Bern/Switzerland Sara Iglesias Sa´nchez, Dr., Re´fe´rendaire, Court of Justice of the European Union Tobias Jo¨st, Independent consultant, Oslo/Norway Marcel Kau, Dr., Privatdozent at the University of Konstanz/Germany Tobias Klarmann, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Ingo Kraft, Prof. Dr., Judge at the Federal Administrative (Supreme) Court, Leipzig/Germany. Professor at the University of Leipzig/Germany Hendrik Lo¨rges, LL.M., Legal Officer at the German Federal Ministry of the Interior, Berlin/Germany Fabian Lutz, Principal Administrator, European Commission, DG Home Affairs -Immigration Unit Francesco Maiani, Prof. Dr., Professor in Public Law at the University of Lausanne/Switzerland Sergo Mananashvili, Dr., Migration Policy Centre, European University Institute, Florence/Italy Annalisa Meloni, Dr., Senior Lecturer, University of East London/United Kingdom Markus Peek, Dr., Legal Officer at the Federal Department of Justice and Police, Federal Office for Migration, Berne/Switzerland Bernard Ryan, Prof. Dr., Professor of Migration Law, University of Leicester/United Kingdom Florian Schierle, Legal Officer at the Federal Ministry of Labour and Social Affairs, Berlin/Germany Achilles Skordas, Prof. Dr., Professor of International Law, University of Bristol/United Kingdom, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Hugo Storey, Judge at the UK Upper Tribunal Immigration and Asylum Chamber Daniel Thym, Prof. Dr., Professor at the University of Konstanz and Director at the Center for Immigration & Asylum, Konstanz/Germany, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Evangelia (Lilian) Tsourdi, LL.M. (Athens and Essex), Ph.D. candidate, Universite´ libre de Bruxelles (ULB)/Belgium; researcher, Universite´ catholique de Louvain (UCL)/Belgium Jens Vedsted-Hansen, Prof. Dr., Professor at Aarhus University/Denmark, Director at the INTRAlaw Research Centre, Aarhus/Denmark, Member of the Danish Refugee Appeals Board, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Anja Wiesbrock, Dr., Senior Judicial Adviser at the Research Council of Norway

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List of Abbreviations ADD ............................................ AFSJ ............................................. AG ................................................ AMIF ........................................... Asylum Procedures Directive ..................................... Asylum Qualification Directive .....................................

Asylum Reception Directive .. Blue Card Directive ................. BVerfGE ..................................... BVerwGE .................................... C ................................................... CAT ............................................. CEAS ........................................... CEPS ............................................ cf. .................................................. CFI ............................................... CFR .............................................. Citizenship Directive ...............

CJEL ............................................ CJEU ............................................ CML Rev. ................................... CoE .............................................. COM ............................................ CoR .............................................. COREPER .................................. CRC ............................................. CUP ............................................. doc. .............................................. Dublin II Regulation ................

Dublin III Regulation ..............

e. g. ...............................................

addendum Area of Freedom, Security and Justice Advocate General Asylum, Migration and Integration Fund Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180/96) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155/17) Decision of the German Federal Constitutional Court Decision of the German Federal Administrative Court Commission Documents relating to official instruments for which the Commission has sole responsibility Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Common European Asylum System Centre for European Policy Studies confer Court of First Instance of the European Union (until 2009; thereafter: General Court) Charter of Fundamental Rights of the European Union Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77) Columbia Journal of European Law Court of Justice of the European Union Common Market Law Review Council of Europe Commission Documents for the other institutions (legislative proposals, communications, reports, etc.) Committee of the Regions Committee of Permanent Representatives of the Government of the Member States Convention on the Rights of the Child Cambridge University Press Document Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50/1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180/31). for example

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List of Abbreviations EASO ........................................... EBGT ........................................... EC ................................................ ECHR .......................................... ECJ ............................................... ECR .............................................. ECRE ........................................... ECtHR ......................................... ed/eds .......................................... EEA .............................................. EEC .............................................. EFTA ........................................... EJIL .............................................. EJML ........................................... EL Rev. ........................................ ELJ ............................................... Employers Sanctions Directive ..................................... EP ................................................. ESC .............................................. et al. ............................................. et seq ........................................... et seqq ......................................... etc. ................................................ EU ................................................ EuConst ...................................... Eurodac Regulation ..................

EUROSTAT ............................... Family Reunification Directive ..................................... former Asylum Procedures Directive ..................................... former Asylum Qualification Directive ..................................... former Asylum Reception Directive ..................................... Free Movement Directive .......

FRONTEX ..................................

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European Asylum Support Office European Border Guard Team European Community (-ies) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) European Court of Justice European Court Reports European Council on Refugees and Exiles European Court of Human Rights editor/editors European Economic Area European Economic Community European Free Trade Association European Journal of International Law European Journal of Migration and Law European Law Review European Law Journal Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24) European Parliament Economic and Social Committee et alii/and others et sequentes/following et sequentes/and the following et cetera European Union European Constitutional Law Review Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (2013 L 180/1) Statistical Office of the European Union Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251/12) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326/13) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304/12) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31/18) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77) European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

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List of Abbreviations Frontex Regulation ................... Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349/1) FYROM ...................................... Former Yugoslav Republic of Macedonia GAMM ....................................... Global Approach to Migration and Mobility GATS ........................................... General Agreement on Trade in Services GATT .......................................... General Agreement on Tariffs and Trade GC ................................................ General Court of the European Union (since 2009) GC ................................................ Grand Chamber GC ................................................ Geneva Convention Geneva Convention ................. Geneva Convention relating to the Status of Refugees of 28 July 1951 GLJ ............................................... German Law Journal HR Rev. ...................................... Human Rights Review HRC ............................................. Human Rights Committee Human Trafficking Council Directive 2004/81/EC of 29 April 2004 on the residence permit Directive ...................................... issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261/19) i. e. ................................................ id est/that is/means ibid. .............................................. ibidem/in the same place/the same ICC .............................................. International Criminal Court ICC Statute ................................ (Rome) Statute of the International Criminal Court ICJ ................................................ International Court of Justice ICJ Statute .................................. Statute of the International Court of Justice ICT ............................................... intra-corporate transferee ICT Directive ............................. Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L157/1) ICCPR ......................................... International Covenant on Civil and Political Rights ICESCR ....................................... International Covenant on Economic, Social and Cultural Rights ICLQ ............................................ International and Comparative Law Quarterly ICON ........................................... International Journal of Constitutional Law ICRC ............................................ International Committee of the Red Cross IJRL .............................................. International Journal of Refugee Law ILO ............................................... International Labour Organization IM Rev. ....................................... International Migration Review IMO ............................................. International Maritime Organization IO ................................................. International Organization IOM ............................................. International Organization for Migration ISCED ......................................... International Standard Classification of Education JCMSt. ......................................... Journal of Common Market Studies JRSt. ............................................. Journal of Refugee Studies lit. ................................................. litera/letter Long-Term Residents Council Directive 2003/109/EC of 25 November 2003 concerning the Directive ..................................... status of third-country nationals who are long-term residents (OJ 2004 L 16/44) with amendments (see the consolidated version of 2011). MBA ............................................ Master of business administration MN ............................................... margin number/note MoU ............................................ Memorandum of Understanding NGO ............................................ Non-Governmental Organisation no. ................................................ number OJ ................................................. Official Journal of the European Union OSCE ........................................... Organisation for Security and Cooperation in Europe OUP ............................................. Oxford University Press p./pp. ........................................... page/pages para. ............................................. paragraph paras ............................................ paragraphs Posted Workers Directive ....... Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18/1)

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List of Abbreviations Rec. .............................................. Recommendation Researchers Directive .............. Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L289/15) REV ............................................. revised Return Directive ....................... Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98) SAR Convention ....................... International Convention on Maritime Search and Rescue (1979) Schengen Borders Code Regulation (EC) No. 562/2006 of the European Parliament and of the Regulation .................................. Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105/1) Sea Borders Regulation ........... Regulation (EU) No. 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2014 L189/93) Seasonal Workers Directive ... Directive 2014/36/EU of the European Parliament and of the Council on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers of 26 February 2014 (OJ 2014 L 94/375). SEC .............................................. Commission Documents which cannot be classified in any of the other series sent. .............................................. sentence SIAC ............................................ Special Immigration Appeals Commission Single Permit Directive ........... Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343/1) SIS ................................................ Schengen Information System Social Security Coordination Regulation (EC) No 883/2004 of the European Parliament and of the Regulation ................................... Council of 29 April 2004 on the coordination of social security system SOLAS Convention .................. Safety of Life at Sea Convention (1974) Students Directive .................... Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L375/12) TEC .............................................. Treaty establishing the European Community TEC (Nice version) .................. EC Treaty (as amended by the Treaty of Nice) TEC (Maastricht version) ....... EC Treaty (as amended by the Treaty of Maastricht) TEC (Amsterdam version) ..... EC Treaty (as amended by the Treaty of Amsterdam) Temporary Protection Direc- Council Directive 2001/55/EC of 20 July 2001 on minimum standards for tive ............................................... giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212/12) TEU ............................................. Treaty on European Union TEU (Nice version) .................. EU Treaty (as amended by the Treaty of Nice) TEU (Maastricht version) ...... EU Treaty (as amended by the Treaty of Maastricht) TEU (Amsterdam version) .... EU Treaty (as amended by the Treaty of Amsterdam) TFEU ........................................... Treaty on the Functioning of the European Union UDHR ......................................... Universal Declaration of Human Rights UK ................................................ United Kingdom UN ............................................... United Nations UNCLOS .................................... United Nations Convention on the Law of the Sea (1982) UNHCR ...................................... United Nations High Commissioner for Refugees Visa Code Regulation .............. Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243/1)

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List of Abbreviations Visa Regulation ......................... Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81/1)

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PART A INTRODUCTION Constitutional Framework and Principles for Interpretation Selected Bibliography: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014); Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287–340; Craig, EU Administrative Law, 2nd edn (OUP, 2012); Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’, EJML 16 (2014), p. 313–335; Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012); Hailbronner, Asylund Ausla¨nderrecht, 3rd edn (Kohlhammer, 2013); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551–585; Pascouau, La politique migratoire de l’Union europe´enne (Fondation Varenne, 2011); Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Walker (ed), Europe’s Area of Freedom, Security and Justice (Hart, 2004); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010).

Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evolution of the Treaty Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Objectives for Law-Making. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Political Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Overarching Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Interpretation of EU Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. General Principles (Proportionality) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. More Favourable National Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Application in Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. United Kingdom and Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Rights and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. EU Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. European Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Geneva Convention and International Human Rights . . . . . . . . . . . . . . . . . . . 4. Other International Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 8 10 10 21 28 34 38 40 42 46 47 51 53 56

I. General Remarks 1. Evolution of the Treaty Regime EU immigration and asylum legislation is nowadays adopted on the basis of 1 Articles 77–80 TFEU. These provisions have been firmly embedded into the supranational legal order of the EU Treaties since the entry into force of the Treaty of Lisbon on 1 December 2009. Prior to this date, the situation was different. To a large degree, early EU immigration and asylum law had been dominated by ad hoc inter-governmental cooperation between some or all Member States outside of the supranational Treaty Hailbronner/Thym

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Part A

Introduction

framework. Informal cooperation existed since the early 1970s1 and was subsequently transformed into binding international treaties such as the original Schengen Agreement of 1985, the Schengen Implementing Convention of 1990 (see Thym, Legal Framework for Entry and Border Controls, MN 1) and the Dublin Convention of 1990.2 More detailed rules were laid down in the decisions of the Schengen Executive Committee and other bodies established under said Conventions, where national interior ministers adopted multiple implementing decisions, intergovernmental resolutions or similar arrangements (this mode of decision-making was often criticised as intransparent and undemocratic3). These rules later became known as the ‘Schengen Acquis’ and formed the backbone of the EU immigration and asylum law, which will be discussed in this volume. While the UK and Ireland remained outside the Schengen framework, most other Member States joined Schengen (see below MN 42). 2 In 1992, the Treaty of Maastricht established a framework for decision-making on justice and home affairs within the newly founded European Union, which maintained decidedly intergovernmental characteristics. At the time, the EU Treaty only allowed for the adoption of non-binding joint positions or the elaboration of international treaties (not supranational directives and regulations), which would have to be ratified by national parliaments in line with established principles of public international law.4 These rules on intergovernmental justice and home affairs in the Maastricht Treaty proved rather inefficient and produced little legally binding output.5 Nevertheless, the informal arrangements provided a bedrock of common standards which the EU institutions could build on once the Treaty of Amsterdam established a more robust Treaty base for migration and asylum law within the supranational EC Treaty.6 To satisfy British, Irish and Danish demands, these states were granted an opt-out (see below MN 38–45). At the same time, the Schengen Acquis was incorporated into the EU framework, thereby giving more substance to the new Treaty bases (see Thym, Legal Framework for Entry and Border Controls, MN 2–3). 3 Since the entry into force of the Treaty of Amsterdam, the EU institutions have been allowed to adopt regular Community instruments, in particular Directives and Regulations, which can be directly applicable and benefit from primacy over domestic law in cases of conflict, in line with the established principles of the supranational legal order. Nonetheless, the transfer of immigration, asylum and border controls to the supranational ‘first pillar’ remained incomplete, since the Treaties of Amsterdam and Nice continued specific institutional arrangements that diverged from the supranational decision-making method. This was deemed necessary in order to take account of the political ‘sensitiveness’ of matters which had hitherto belonged to the core issues of

1 See Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 3–16. 2 Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities of 15 December 2000 (OJ 1997 C 254/1). 3 See Curtin/Meijers, ‘The Principle of Open Government in Schengen and the European Union’, CML Rev. 32 (1995), p. 391–442; and, for improvements after the integration into the EU legal order, see Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’, ELJ 8 (2002), p. 218, 221–233. 4 Cf. Article K.2(2) EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1). 5 See Hailbronner, Immigration and Asylum Law, p. 35–42; and Denza, The Intergovernmental Pillars of the European Union (OUP, 2002), ch. 6. 6 Cf. Articles 61–69 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173); on the negotiating history, see Guild, Guild, Immigration Law in the European Community (Martinus Nijhoff, 2001), p. 327–333.

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national sovereignty.7 For that reason, the Council acted unanimously on proposals from the Commission or a Member State in most subject areas and the European Parliament was only consulted. Moreover, not all domestic courts could make preliminary references to the Court of Justice.8 The Treaty of Nice, which entered into force in 2003, extended today’s ordinary legislative procedure to some policy fields9 and one year later the Council activated a bridging clause in the EC Treaty rendering more areas subject to qualified-majority voting in the Council and co-decision powers of the European Parliament.10 However, full supranationalisation was brought about only by the entry into force of the Treaty of Lisbon, which aligned immigration and asylum law with the orthodoxy of supranational decision-making. In the age of the Lisbon Treaty we may conclude that the former ‘ghetto’ has been gentrified; Articles 77–80 TFEU are part and parcel of the supranational integration method.11 The Treaty of Lisbon not only streamlined decision-making procedures, but also 4 broadened the scope of Union competences through a substantive revision of today’s Articles 77–80 TFEU in line with the proposal of the erstwhile Constitutional Treaty, which never entered into force. The European Convention, which drafted the Constitutional Treaty, was particularly active in the field of justice and home affairs and its conclusions on immigration and asylum retain full relevance, since they were later integrated in the Lisbon Treaty without major changes.12 To understand the meaning of Treaty formulations such as ‘integrated management system for external borders’ (Article 77(2)(d) TFEU), it is helpful to consult the drafting documents of the European Convention.13 The scope of EU competences on immigration and asylum will be discussed in more detail in the introductions to the different chapters of this commentary dealing with border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 7–24), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 9–27) and asylum (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 8–36).

2. Objectives for Law-Making Besides the consolidation of Union competences, the Treaty of Lisbon endorsed the 5 self-sufficiency of EU immigration and asylum law in line with the reform steps agreed upon in the debate leading towards the Constitutional Treaty (see above MN 4). EU activity on the basis of Articles 77–80 TFEU is no longer presented as a spillover of the single market in line with the original assumption that the abolition of border controls within the Schengen area necessitated ‘flanking measures’ compensating Member States for the loss of control options at domestic borders (see Thym, Legal Framework for 7 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 16–20; for a critical position, see Peers, EU Justice and Home Affairs Law, 1st edn (Longman, 2000), p. 2: ‘ghetto.’ 8 See Articles 67, 68 EC Treaty (OJ 1997 C 340/173), which also provided for some qualified-majority voting in the Council after a five-year-period; and Hailbronner, Immigration and Asylum Law, p. 92–103. 9 Cf. Article 67(5) EC Treaty as amended by the Treaty of Nice of 26 February 2001 (OJ 2006 C 321E/ 37) and the Protocol (No. 35) on Article 67 (OJ 2006 C 321E/317). 10 See Decision 2004/927/EC (OJ 2004 L 396/45). 11 See Peers, EU Justice, p. 17–24. 12 Articles 77–80 TFEU correspond to Articles III-265-268 Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force. 13 For detail, see Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743-772; and Thym, The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe, WHI Paper 12/2004, http://www.whi-berlin.eu/documents/whi-paper1204.pdf [last accessed 13 November 2015].

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Entry and Border Controls, MN 3). Instead, immigration and asylum law has been reaffirmed as a self-sufficient policy field in its own right within the area of freedom, security and justice,14 which Article 3(2) TEU lists among the central objectives of the European project. The concept of the ‘area of freedom, security and justice’ was first introduced first by the Treaty of Amsterdam and was later reinforced by the Treaty of Lisbon (in line with the Constitutional Treaty). It was conceived of as a grand design mirroring earlier projects to realise a single market or economic and monetary union, thereby pushing the process of European integration into new directions, although it should be acknowledged that it was not immediately clear what exactly the ‘area of freedom, security and justice’ was actually meant to mean.15 6 The conceptual autonomy of the area of freedom, security and justice confirms that EU immigration and asylum law does not replicate the mobility regime of Union citizens. Instead, immigration and asylum law is nowadays typified by a collection of diverse objectives laid down in the EU Treaties, which were introduced by the Treaty of Lisbon. The abolition of internal borders is complemented by ‘enhanced measures to combat illegal immigration’16 which command ‘compliance with the principle of nonrefoulement.’17 Generally speaking, ‘the efficient management of migration flows’18 is to be accompanied by ‘fair[ness] towards third-country nationals.’19 These objectives may be summarised under the heading of ‘migration governance’ – a choice of terminology recognising that the migration control perspective of state authorities must accommodate legitimate interests of migrants.20 Two basic features define the new Treaty regime and illustrate that the area of freedom, security and justice differs from the historic template of Union citizenship: firstly, legislation concerning third-country nationals is not usually based on individual rights to cross-border movement at constitutional level (see Thym, Legal Framework for EU Immigration Policy, MN 28–36); secondly, the extended legislative discretion is not absolute, since EU legislation on immigration and asylum must respect human rights (see below MN 46–55). 7 The EU legislature benefits from principled discretion when it comes to realising the Treaty objectives for immigration and asylum law. The EU institutions are bound to promote the Treaty objectives, even if the latter do not regularly translate into judiciable yardsticks for secondary legislation.21 In contrast to human rights (see below MN 46– 55), the Treaty objectives cannot usually be relied on in situations of judicial review in order to challenge EU legislation. Academics may criticise the predominance of securitarian approaches focusing on migration control,22 but such criticism remains inherently political as long as it does not fall foul of human rights standards. This principled discretion on the side of the legislature in realising the Treaty objectives is a general characteristic of Union law23 and is reaffirmed, within the context of the area 14 At a textual level, Article 67 TFEU defines the area of freedom, security and justice without reference to the concept of flanking measures (as did Article 61 lit. a EC Treaty-Amsterdam/Nice). 15 See Monar, The Area of Freedom, p. 552–562. 16 Article 79(1) TFEU. 17 Article 78(1) TFEU. 18 Article 79(1) TFEU. 19 Article 67(2) TFEU; similarly, Article 79(1) TFEU; for the meaning of the different Treaty objectives see, again, Monar, The Area of Freedom, p. 552–562; and Costello, Administrative Governance, p. 289– 293. 20 See Thym, EU Migration Policy, p. 718–723. 21 Similarly, Thym, Migrationsverwaltungsrecht, p. 96–99; and Bast, Aufenthaltsrecht, p. 141–144. 22 By way of example, see Guiraudon, ‘European Integration and Migration Policy’, JCMS 38 (2000), p. 251–271; and Acosta Arcarazo/Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’, EL Rev. 39 (2014), p. 362–379. 23 The same applies to the objectives in Article 3 TEU.

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of freedom, security and justice, by the inherent contradictions between different objectives.24 Moreover, EU immigration and asylum law is not only bound to promote the objectives laid down in Articles 77–80 TFEU, since it must also contribute to the realisation of general objectives, such as ‘full employment’ (Article 3(1) TEU), which arguably supports restrained rules on the access of lesser qualified migrants for as long as unemployment remains ubiquitous among Union citizens.25 The same applies to the objectives of external action, which include, among other things, the eradication of poverty in developing countries.26

3. Political Programming In the initial stages of EU legislative harmonisation, the grand design of the area of 8 freedom, security and justice established by the Treaty of Amsterdam (see above MN 6) was in need of an overarching rationale giving substance to the abstract notion of ‘freedom, security and justice’.27 This function was assumed by the programmes put forward by the European Council on the occasion of its meetings in Tampere (1999), The Hague (2004), Stockholm (2009) and Ypres (2014)28 and the intergovernmental 2008 Pact on Immigration and Asylum as an interlude.29 The theoretical underpinning of these programmes was met with criticism due to their lack of conceptual coherence across policy fields,30 but the various programmes served important functions from a political perspective. Throughout the years, the focus of attention shifted in response to wider political and social developments in Europe and beyond. While the initial Tampere Programme was full of youthful enthusiasm, The Hague Programme was dominated by the fight against terrorism and the Stockholm Programme made a deliberate effort to balance security and human rights concerns in light of the new provisions of the Treaty of Lisbon.31 By contrast, the Ypres Guidelines are noticeably shorter and comprise only a few paragraphs with little substantive guidance.32 The political programmes have therefore lost their practical impact; the earlier programmes, which have expired, can no longer be relied on. From a legal perspective, the guidelines are political in nature in the sense that the 9 institutions are free to deviate from their contents in the ordinary legislative proce24 It is the prerogative of the legislature to decide how to balance the ‘fair treatment’ of third-country nationals (Article 67(2) TFEU) and ‘enhanced measures to combat illegal immigration’ (Article 79(1) TFEU; emphasis added) short of human rights standards, which individuals can rely on in courts. 25 With regard to third countries, the objective of combating poverty (Article 21(2)(d) TEU) calls for measures to counter the ‘brain drain’ of highly qualified migrants from developing countries. 26 Cf. Article 21(2) TEU, which can be used as a legal argument to prevent ‘brain-drain.’ 27 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 5–10. 28 See the initial ‘Vienna Action Plan’ (OJ 1999 C 19/1); European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere; The Hague Programme Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/1); The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens, adopted by the European Council on 11 Dec. 2009 (OJ 2010 C 115/1); and European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, paras 1–13. 29 See Council doc. 13440/08 of 24 September 2008, which was spearheaded by France, Germany and the United Kingdom and reinvigorated the European debate. Ithas been criticised for its focus on the perspective of interior ministers; cf. O’Dowd, ‘Mutual Recognition in European Immigration Policy’, in: Goudappel/Raulus (eds), The Future of Asylum in the European Union (Springer, 2011), p. 73, 77–78. 30 By way of example, see Monar, The Area of Freedom, p. 556–561. 31 For an overview, see Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid. (eds), EU Security, p. 1, 4–9. 32 See De Bruycker, The Missed Opportunity of the ‘Ypres Guidelines’ of the European Council Regarding Immigration and Asylum, EUI Migration Policy Centre Blog on 29 July 2014.

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dure.33 Doctrinally, the political programmes are therefore less relevant than the Treaty objectives introduced by the Treaty of Lisbon, which leave considerable discretion to the EU institutions but are nonetheless binding on them as a matter of principle (see above MN 7). The limited legal weight of the political programmes does not detract from their political significance; guidance from heads of state or government often supported the realisation of the area of freedom, security and justice when the European Council ‘urged’ hesitant interior ministers to ‘speed-up’ legislation.34 More recently, however, their impact has gone into a sharp decline. In noticeable contrast to the extensive prescriptions in earlier programmes, the Ypres Guidelines adopted in June 2014 are limited to general declarations of intent.35 This demonstrates that the area of freedom, security and justice has reached a state of maturity. Change remains possible, but the various legislative instruments, which are commented upon in this volume, are now at the centre of attention. Political programming has lost its relevance.

II. Overarching Principles 1. Interpretation of EU Legislation Immigration and asylum regulations and directives are interpreted according to the same principles that apply to secondary EU legislation in other areas. This implies that the established principles of legislative interpretation apply, in particular those derived from continental civil law jurisdictions by the ECJ.36 In line with established case law, the supranational EU legal order has created its own legal system and is not subject to the interpretative principles of public international law.37 Generally speaking, secondary legislation must therefore be interpreted in the light of the wording, the systemic structure (general scheme), the drafting history, the objectives and constitutional requirements, such as human rights or international law (see below MN 46–59) as well as the unwritten general principles of Union law (see below MN 21–27).38 This commentary explores the interpretation of EU immigration and asylum law on the basis of these interpretative principles including in situations where there is currently no ECJ case law on a specific question. 11 It should be noted that contextual factors can complicate the straightforward operationalisation of the interpretative standards in practice. As a supranational and multilingual order, EU law often lacks the precision of domestic legal systems, where certain terms often have a precise doctrinal meaning that has been historically con10

33 Article 68 TFEU on ‘strategic guidelines for legislative and operational planning’ by the European Council does not detract from the political discretion of the Parliament, the Commission and the Council in the ordinary legislative procedure, which applies to the adoption of measures on the basis of Articles 77(2), 78(2) and 79(2) TFEU and during which they may decide not to follow the European Council. 34 See, e. g., the Seville European Council of 21/22 June 2002, Presidency Conclusions, para 37; see also Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 215–220. 35 The reason may be a dispute between the Council and the Commission on the implementation of the Stockholm Programme described by Carrera, ‘The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders’, in: Guild/Minderhoud (eds), The First Decade, p. 229, 239–243. 36 See van Gestel/Micklitz, ‘Why Methods Matter in European Legal Scholarship’, ELJ 20 (2014), p. 292–316. 37 Cf. ECJ, Costa/E.N.E.L, 6/64, EU:C:1964:66; nevertheless, there is a certain parallelism between the interpretative principles of international treaty law and EU practice, in particular concerning the predominance of teleological interpretation prescribed in Articles 31–32 Vienna Convention on the Law of Treaties. 38 Generally on the interpretation of EU law, see Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’, GLJ 10 (2009), p. 537–561.

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structed over the years.39 Moreover, debates in the Council and between the EU institutions tend to follow the tradition of diplomatic negotiations resulting in open compromise formulae instead of clear guidance.40 Poor drafting and lack of coordination between working parties can further entail that EU immigration and asylum legislation occasionally employs similar terminology and concepts, albeit with separate meanings in different legislative acts.41 We should therefore apply the interpretative standards of EU immigration and asylum law in full awareness of the underlying supranational characteristics. In so doing, academics and judges should make an effort to build bridges between transnational debates (in English) and the enduring domestic discussions within the Member States in the respective national languages,42 which the contributions to this commentary aim to integrate into their analysis. Commentators should not mistake the transnational debate in English for the only or main forum for legal debates about EU immigration and asylum law.43 While the Court of Justice has acquired a certain celebrity for dynamic interpreta- 12 tion, it should be noted that the most notorious examples of dynamic interpretation concerned essential Treaty concepts, such as the realisation of the single market or the promotion of Union citizenship. By contrast, immigration and asylum law does not necessarily benefit from a similar constitutional direction, since Treaty rules on the area of freedom, security and justice embrace diverse and occasionally conflicting objectives (see above MN 6–7). It is convincing, therefore, that the ECJ exhibits more sensitivity towards the choices of the EU legislature in areas where the EU Treaty awards the EU institutions a greater level of discretion. In the case law on immigration and asylum regulations and directives, there is a noticeable number of judgments developing their conclusion under recourse to the wording, general theme, objectives and other interpretative principles mentioned above.44 This confirms that the Court’s approach towards secondary legislation is more conservative, from a methodological perspective, than towards Treaty law. The legislature holds the primary responsibility to offset the framework for EU immigration and asylum law in the ordinary legislative procedure on the basis of Articles 77–80 TFEU. Questions of interpretation frequently arise with regard to the drafting history of a 13 directive or regulation. In its earlier case law, the Court had generally attributed limited importance to the legislative history;45 even common interpretative declarations of the Member States on the occasion of the adoption were considered irrelevant, with the Court relying on the primary importance of the fundamental freedoms,46 which realise the central Treaty concepts of the single market and Union citizenship (see above MN 39 On the relative doctrinal weakness of EU law, see Poiares Maduro, ‘Interpreting European Law’, Eur. J. Legal Stud. 2 (2007), Issue 2, p. 1, 9–10; and von Danwitz, ‘Funktionsbedingungen der Rechtsprechung des Europa¨ischen Gerichtshofs’, Europarecht 2008, p. 769, 780–782. 40 See Sharpston, ‘Transparency and Clear Legal Language in the European Union’, The Cambridge Yearbook of European Legal Studies 12 (2009–2010), p. 409, 411–412. 41 See Hecker, ‘Zur Europa ¨isierung des Ausla¨nderrechts’, Zeitschrift fu¨r Ausla¨nderrecht 2011, p. 46, 48–49. 42 See Thym, The Solitude of European Law Made in Germany, Verfassungsblog.de on 29 May 2014, http://www.verfassungsblog.de/en/die-einsamkeit-des-deutschsprachigen-europarechts [last accessed 16 November 2015]. 43 Not least since the United Kingdom and Ireland do not participate in many immigration and asylum law initiatives; see below MN 42–45. 44 For border controls and visas, see ECJ, Koushkaki, C-84/12, EU:C:2013:862; for immigration, see ECJ, Tahir, C-469/13, EU:C:2014:2094; and for asylum, see ECJ, Bolbol, C-31/09, EU:C:2010:351. 45 See Wendel, ‘Renaissance der historischen Auslegungsmethode?’, Zeitschrift fu ¨ r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht/Heidelberg Journal of International Law 68 (2008), p. 803, 807–811. 46 See, in the context of the free movement of EU citizens (not: third-country nationals), ECJ, Antonissen, C-292/89, EU:C:1991:80, paras 17–18.

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12). In the area of freedom, security and justice, this technique cannot usually be employed. The Court should take the drafting history more seriously, not least since the information on the position of the various actors is now easily accessible through the Eur-Lex portal of the EU institutions.47 This information is particularly useful when addressing questions that have not yet been discussed in ECJ case law – as many chapters to this commentary illustrate. The newly found prominence of historic interpretation extends to the EU Treaties mutatis mutandi, since the drafting documents of the rules on immigration and asylum in the Treaty of Lisbon and the European Convention preparing the Constitutional Treaty (see above MN 5) are easily accessible online.48 Article 52(7) of the Charter expressly obliges judges at national and European level to give due regard to the official explanations.49 14 In the field of asylum and immigration, human rights and international legal standards have an enduring influence on the interpretation of EU law. In so far as public international law is concerned, the ECJ maintains that EU law must be interpreted in light of the international legal obligations of the European Union as a matter of principle, although there are some caveats concerning the direct applicability of international law as well as the obligations of the Member States to which the EU has not signed up (see below MN 58–59). In practice, the Geneva Convention holds a special position enshrined in Article 78(1) TFEU (see Hailbronner/Thym, Legal Framework of EU Asylum Law, MN 8, 47). When it comes to human rights, Article 6 TEU leaves no doubt that they must be respected; secondary legislation can be struck down or interpreted in conformity with human rights,50 as the ECJ has reaffirmed in a number of cases on immigration and asylum.51 In practice, the European Convention of Human Rights plays a central role, since it informs the interpretation of the EU Charter (see below MN 49). There have been cases, however, where judges in Luxembourg preferred to focus on the general scheme of secondary legislation (MN 12) instead of embarking on a human rights analysis, especially in situations where the human rights dimension did not directly influence the outcome of the case.52 Moreover, experts on immigration and asylum should recognise that the ECJ pays due regard to other constitutional principles, such as the division of competences between the European Union and the Member States,53 which may entail that the assessment of national laws 47 In the ‘procedure’ section, the Eur-Lex portal offers detailed information for each legislative act, which may be identified through the search form for the ‘document reference’ (see http://eur-lex.europa.eu/advanced-search-form.html) or for the corresponding preparatory COM document (see http:// eur-lex.europa.eu/collection/eu-law/pre-acts.html; both accessed last on 24 November 2015) by opening the subsection on ‘procedure’. 48 For the European Convention, see http://european-convention.europa.eu; and for the IGC for the Lisbon Treaty, see http://www.consilium.europa.eu/en/documents-publications/intergovernmental-conferences [both accessed last on 24 November 2015]; for further reflection, see Craig, ‘The Detailed Mandate and the Future Methods of Interpretation of the Treaties’, in: Pernice/Tanchev (eds), Ceci n’est pas une Constitution – Constitutionalisation without a Constitution? (Nomos, 2008), p. 86–98. 49 See the Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/17). 50 Similarly, Groenendijk, Recent Developments, p. 330; and Groß, ‘Europa ¨ische Grundrechte als Vorgaben fu¨r das Einwanderungs- und Asylrecht’, Kritische Justiz 2001, p. 100–111. 51 Cf., by way of example, ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, paras 76–78; ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 34; and ECJ, X, Y & Z, C-199/12 & C-200/12, EU:C:2013:720, para 40. 52 Cf., by way of example, the silence on Article 8 ECHR in ECJ, Noorzia, C-338/13, EU:C:2014:2092; or the lack of comments on human dignity or Article 34 of the Charter in ECJ, Saciri et al., C-79/13, EU:C:2014:103; see also Azoulai/de Vries, ‘Introduction’, in: ibid. (eds), EU Migration Law, p. 1, 6–7. 53 See Horsley, ‘Reflections on the Role of the Court of justice as the “Motor” of European Integration’, CML Rev. 50 (2013), p. 931, 941–953; and Thym, ‘Towards “Real” Citizenship?’, in: Adams et al. (eds), Judging Europe’s Judges (Hart, 2013), p. 155–174.

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beyond the scope of EU obligations are left to national constitutions and the ECHR (see below MN 47–48). The ECJ is not a specialised immigration and asylum tribunal, but rather a supreme court with broader constitutional responsibilities. For historic reasons, the concept of direct effect and the related category of individual 15 rights play a prominent role in the interpretation of Union law by the ECJ.54 Judges recognise that migrants may have individual rights emanating from EU legislation55 and that, in addition, exceptions to individual rights should be narrowly construed.56 On this basis, the position of migrants can be advanced through a methodology of rights-based interpretation,57 whose outcome should reflect the broader constitutional context. In contrast to the single market and EU citizenship (see below MN 20), the individual rights of third-country nationals in immigration and asylum legislation do not usually flow directly from rights to cross-border movement with constitutional status.58 Human rights, in particular, do not typically comprise a guarantee for migrants to be granted access to the European territory in the field of legal migration (see Thym, Legal Framework for EU Immigration Law, MN 51). This implies that individual rights granted by the EU legislature can go beyond the level of protection prescribed by human rights, as the ECJ explicitly recognised in the case of family reunification.59 When deciding on the scope of the statutory rights of migrants beyond the human rights requirement, the EU legislature determines the conditions and limits set forth in legislative instruments. Judges should generally respect these legislative choices, especially if secondary legislation provides for discretion on the side of national authorities in the application of statutory requirements for individual rights.60 The contours of individual rights in EU legislation have to be determined under recourse to the interpretative principles, such as the wording, the telos or the general scheme (see above MN 10–12). EU law experts are well aware of the fact that the ECJ frequently activates the 16 principle of effet utile, which aims at the effective application of EU law in domestic legal orders and which is usually applied in conjunction with teleological interpretation promoting the objectives of supranational rules (see below MN 17). Unsurprisingly, the Court also activated the principle of effet utile in immigration and asylum law, for instance by preventing Member States from charging prohibitive fees that might render the realisation of statutory rights of migrants practically ineffective.61 While the effet utile can work to the benefit of migrants, it is not intrinsically linked to this scenario, since it aims to promote the effectiveness of Union law as an end in itself. The advancement of individual rights on the basis of the effet utile concept by judges in Luxembourg has been essentially functional in order to promote the broader integration process;62 if EU law pursues different objectives, the effet utile may direct interpretation 54

See Bast, Aufenthaltsrecht, p. 101–111. By way of example, see ECJ, Chakroun, C-578/08, EU:C:2010:117, para 41. 56 Ibid, para 43. 57 See Groenendijk, Recent Developments, p. 329–330; and Boeles, ‘What Rights Have Migrating Third-Country Nationals?’, in: de Zwaan/Goudappel (eds), Freedom, Security and Justice in the European Union (T.M.C. Asser, 2006), p. 151, 152–162. 58 For further reading, see Thym, Constitutional Rationale, p. 718–721. 59 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, paras 59–60. 60 See, by way of example, in the field of visas ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–62; and for students ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27, 33; in the German language version, the Court refers to a ‘Beurteilungsspielraum’ (not: ‘Ermessen’), thereby emphasising that the discretion concerns the conditions under which individual rights come about. 61 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; and ECJ, Commission vs. Netherlands, C-508/ 10, EU:C:2012:243, para 65. 62 For a prominent critique, see Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’, International Journal of Constitutional Law 12 (2014), p. 94–103. 55

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in other directions. Thus, the ECJ emphasised that the Return Directive 2008/115/EC aims to establish an effective policy of removal and repatriation of illegally staying foreigners63 and that asylum seekers cannot benefit from individual rights under the former Dublin II Regulation (EC) No 343/2003 in situations that are not prescribed by human rights in light of, among other things, the general scheme and objective of said Regulation.64 Essentially, the objectives to be promoted by the effet utile principle should be determined by means of statutory interpretation; they are dependent on the content and context. 17 Unfortunately, the ECJ can be superfluous when identifying the aims pursued by the EU legislature in the adoption of immigration and asylum rules. It has fluctuated, for instance, when identifying the main objective behind the Dublin Regulations between the identification of the Member States responsible for examining an asylum application65 and effective access by individuals to the asylum procedure66 (both objectives should probably be considered to underlie the Regulation in parallel). Similarly, the Family Reunification Directive 2003/86/EC has been generally deemed to promote family reunification,67 while Article 4(5) establishing a minimum age of 21 years was considered to prevent forced marriages (an objective that may conflict with the promotion of family reunification).68 To say, moreover, that the Long-Term Residents Directive 2003/109/EC pursues the objective of promoting the integration of long-term residents may conceal the complexity that is inherent to interpreting of the concept of ‘integration’ lurking behind the seemingly well-defined objective identified by the Court (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). Likewise, it can be treacherous to rely solely upon abstract formulations of a particular recital, since closer inspection of the recitals in the light of the drafting history (see above MN 13) will often expose that specific legislative acts pursue diverse and potentially conflicting objectives which reflect the diversity of opinions among the various participants in the legislative process in a democratic and pluralistic society.69 In such scenarios, courts should discuss the plurality of objectives openly and address them, where appropriate, in the balancing exercise that underlies proportionality sensu stricto, whose outcome is determined by the relative weight of the objectives and interests at stake (see below MN 26). 18 It is not surprising that the ECJ supports the coherence of the supranational legal order by interpreting similar terms in an identical fashion whenever appropriate. This may entail that doctrinal concepts developed for other segments of Union law are applied to immigration and asylum instruments,70 such as the concept of ‘abuse’, which was first developed for the field of economic market regulation (see Thym, Legal Framework for EU Immigration Policy, MN 48–49). However, such parallel interpretation of similar terminology is no foregone conclusion and depends on the context of the statutory rule under consideration. Occasionally, the legislature may expressly define certain concepts for the purpose of the specific legislative instruments.71 In other 63

See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 59. See ECJ, Abdullahi, C-394/12, EU:C:2013:813, paras 51–59; the reasoning applies to the Dublin III Regulation (EU) No 604/2013 mutatis mutandi. 65 Cf. ECJ, Kastrati, C-620/10, EU:C:2012:265, para 52. 66 Cf. ECJ, MA et al., C-648/11, EU:C:2013:367, para 54. 67 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 68 ECJ, Noorzia, C-338/13, EU:C:2014:2092, para 16. 69 To pursue diverse and potentially conflicting aims is a hallmark of open democratic discourse, not a pathology. 70 See Groenendijk, Recent Developments, p. 329; and Jesse, ‘The Value of “Integration” in European Law’, ELJ 27 (2011), p. 172–189. 71 Such official definitions can usually be found in the introductory operative articles of the directive or regulation and may be specific to it, i. e. other instruments may prescribe a different meaning. 64

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scenarios, consideration of the general theme and the objectives of the legislative acts in question may result in the conclusion that identical terms have a different meaning in different instruments.72 It therefore has to be ascertained, in line with general interpretative criteria (see above MN 10–12), whether and, if so, to what extent, different legislative acts may be interpreted in parallel. The example of the ECJ case law on the Association Agreement between the EEC and 19 Turkey and related Decisions of the Association Council which are often relied on as a harbinger of dynamic interpretation of similar terminology,73 demonstrates both the potential and the limits of parallel interpretation. The ‘so far as is possible’74 formula employed by the ECJ reflects the wording of the Association Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the economic freedoms in the single market.75 This implies, in turn, that parallel interpretation ends where the objectives and the general scheme of Union law and the Association Agreement diverge; the ‘so far as is possible’ formula is inherently open-ended and ultimately depends on the context76 – in a similar vein as the comparability of secondary legislation on immigration and asylum with other policy area has to be determined on a case-by-case basis (see above MN 18). In practice, this dependence on the context of the EEC-Turkey Agreement entailed that even identically formulated provisions, such as the concept of public policy as a limit to free movement guarantees,77 have to be interpreted differently if the objectives and the general scheme do not support interpretative convergence.78 The considerations above demonstrate that it is a general feature of EU immigration 20 and asylum law that the interpretation of specific rules depends on the broader statutory and constitutional context. It is therefore not convincing to maintain the generic argument that the interpretation of secondary legislation on immigration and asylum by the ECJ will support a sort of domino effect that confers equal rights as Union citizens upon third-country nationals.79 There is no legal expectation enshrined at Treaty level that third-country nationals and Union citizens should have similar rights. EU citizens benefit from individual rights emanating from the Treaty concept of Union citizenship, while third-country nationals cannot rely upon legal guarantees of cross-border movement with constitutional status in regular circumstances (see above 72 See, by way of example, the divergent interpretation of the term ‘worker’ and ‘social assistance’ in the context of Union citizenship with regard to the Citizenship Directive 2004/38/EC and the Social Security Coordination Regulation (EU) No. 883/2004 reaffirmed by ECJ, Brey, C-140/12, EU:C:2013:565. 73 See Barbou des Places, ‘Droit communautaire de la liberte ´ de circulation et droit des migrations’, in: L’Union europe´enne: Union de droit, Union des droits. Me´langes en l’honneur de Philippe Manin (Pedone, 2010), p. 341, 344–350; Carrera/Wiesbrock, ‘Whose European Citizenship in the Stockholm Programme?’, EJML 12 (2010), p. 337, 347–349; and Groenendijk, Recent Developments, p. 321–324. 74 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 75 See the Preamble and Article 12 Agreement Establishing an Association between the European Economic Community and Turkey of 12 September 1963 (OJ 1977 L 361/1). 76 See Hailbronner, ‘Einreise und Aufenthalt tu ¨ rkischer Staatsangeho¨riger im Assoziationsrecht EWGTu¨rkei’, Zeitschrift fu¨r Ausla¨nderrecht 2011, p. 322, 324. 77 For a distinction between EU rules and the Association Agreement with regard to the public policy exception, see ECJ, Ziebell, C-371/08, EU:C:2011:809; similarly, for the standstill provision in the Additional Protocol to the said Agreement, see ECJ, Demirkan, C-221/11, EU:C:2013:583. 78 For further reading, see Thym, ‘Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement’, in: ibid./Zoeteweij Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements. Degrees of Free Movement and Citizenship (Martinus Nijhoff, 2015), p. 13–38. 79 Such predictions usually rely on the abstract recognition that proportionality applies in both scenarios without considering the constitutional context; see, by way of example, Groenendijk, Recent Developments, p. 330–332; Wiesbrock, ‘Granting Citizenship-related Rights to Third-Country Nationals’, EJML 14 (2012), p. 63, 76–79; and Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), ch. 3.

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MN 15). Judges in Luxembourg have repeatedly recognised that ‘a particularly restrictive interpretation’80 of derogations of the rights of Union citizens was required in the light of EU primary law.81 This cannot be extended to the rules on immigration and asylum, which are an integral part of the area of freedom, security and justice in line with the diverse policy objectives laid down in the EU Treaty (see above MN 6–7), which distinguish the new policy field from the historic template of the single market and Union citizenship (see Thym, Legal Framework for EU Immigration Policy, MN 28–36). This different constitutional context for immigration and asylum law supports the search for autonomous solutions for third-country nationals.

2. General Principles (Proportionality) The supranational legal order comprises a number of unwritten general principles, which were developed by the Court of Justice on the basis of the legal traditions common to the domestic legal orders of the Member States.82 These general principles were developed by the ECJ over the past few decades and are now applied to immigration and asylum law as an integral part of the EU legal order. As unwritten rules, general principles apply without the need for references to them in secondary legislation. They can be relied upon in order to interpret the measures adopted by the EU institutions and, in exceptional circumstances, serve as grounds for judicial review.83 Moreover, the general principles bind Member States when implementing Union law, i. e. state authorities and domestic courts must respect the general principles when they adopt decisions or render judgments whose outcome is determined by EU law, thereby influencing the interpretation of domestic law. As we shall go on to discuss, the extent to which Member States must respect the general principles when they have implementing discretion remains unclear (see below MN 47–48). Whenever Member States are not bound by general principles, they apply only national standards, including domestic constitutional guarantees. A narrow reading of the scope of the general principles does not leave migrants without legal protection. 22 From a conceptual perspective, the general principles underline that EU immigration and asylum law is firmly embedded into the rule of law. Traditional notions of migration law and alienation as an exclave of legal protection, which prevailed in some Member States until recently, cannot be maintained.84 The significance of the general principles comes to the fore after the end of the legislative procedure, once domestic courts and the ECJ begin to interpret EU directives and regulations. Unexpected legal effects flowing from the interpretation of secondary law in light of general principles are a common phenomenon.85 Judges in Luxembourg have developed a certain celebrity for dynamic interpretation, in particular with regard to Primary law – although there are indications that judges take the wording, the structure and the drafting history of immigration and asylum law instruments seriously (see above MN 12). 21

80

By way of example, see ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. See also, Thym, Constitutional Rationale, p. 718–721. 82 For further reading, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 83 On the hierarchical superiority of the general principles in situations of judicial review, see ECJ, Audiolux, C-101/08, EU:C:2009:626, para 63. 84 Cf. Thym, Migrationsverwaltungsrecht, p. 198–211; and Groenendijk, ‘Citizens and Third Country Nationals’, in: Carlier/Guild (eds), L’avenir de la libre circulation des personnes dans l’U. E. (Bruylant, 2006), p. 79, 98–100. 85 Similarly, De Bruycker, ‘Legislative Harmonization in European Immigration Policy’, in: Cholewinski et al. (eds), International Migration Law (T.M.C. Asser Press, 2007), p. 329, 343; and Kluth, ‘Reichweite und Folgen der Europa¨isierung des Ausla¨nder- und Asylrechts’, Zeitschrift fu¨r Ausla¨nderrecht 2006, p. 1, 6–7. 81

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Acknowledging the significance of the general principles for the dynamic interpreta- 23 tion of EU migration law by the Court of Justice does not imply that they will always vindicate the position of those that criticise national legal practices. Rather, the precise meaning of the unwritten general principles has to be ascertained on a case-by-case basis. This exercise usually requires a thorough analysis of ECJ case law by consulting, for instance, general treatises on EU administrative law.86 On this basis, one may determine what the general principles require for each case. In terms of substance, human rights have traditionally been the most relevant general principles, although the legally binding Charter of Fundamental Rights means that they are now often discussed separately, as in this chapter (see below MN 47–50). General principles include the primacy and direct effect of Union law in national legal orders when individuals rely upon EU rules that are clear, precise and unconditional in national courts and when the supranational rules prevail over domestic laws in cases of conflict.87 Other principles include legitimate expectations and legal certainty88 or damages Member States may have to pay to individuals for manifestly and gravely disrespecting their obligations under EU law.89 General principles relating to the right to defence and judicial protection will be discussed below (see below MN 37). Besides human rights, primacy and direct effect, the principle of proportionality is the 24 most relevant general principle for asylum and immigration law. In EU law, the principle of proportionality has a dual relevance: it both serves as a yardstick for the delimitation of EU competences90 and defines the limits of state action affecting individuals.91 It is the second scenario that is especially relevant in the field of immigration and asylum. Generally speaking, an application of the principle of proportionality requires a four-pronged test: firstly, the state measure affecting individuals must pursue a legitimate aim; secondly, the measure must be suitable for achieving its objective; thirdly, the state action must be necessary to achieve the aim, since there are no less onerous ways available; finally, proportionality sensu stricto is assessed on the basis of a balancing exercise that takes the competing interests into account (although the ECJ sometimes merges the third and fourth criteria).92 This four step test rationalises the application of the principle of proportionality and allows courts and academics to evaluate individual scenarios more easily. It is important to understand that any assessment of proportionality is based on 25 objective standards but nevertheless depends on the circumstances of each individual case. The abstract criteria of the four-pronged test described above require an assessment focusing on the measure in question and its effect in a specific societal context. This dependence on context implies that the degree of judicial scrutiny may depend on the subject area under consideration. There may be good reasons to grant the legislature and/or administrative authorities a margin of appreciation when assessing the suit-

86 See, in particular, Craig, Administrative Law, chs 15–21; and Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 87 Cf. any textbook on EU law. 88 See Craig, Administrative Law, ch. 18; and Wiesbrock, Legal Migration, p. 189–192. 89 Cf. ECJ, Brasserie du pe ˆcheur & Factortame, C-46/93 & C-48/93, EU:C:1996:79 and any textbook on EU law. 90 I.e. the definition of the scope of EU powers in line with Article 5(4) TEU. 91 In contrast to the German legal order, from which the ECJ derived the principle of proportionality, its application is not limited to situations of state interference with individual rights; the ECJ tends to apply proportionality as a limit to state power also in situations that do not involve interference with individual rights. 92 For details, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007), ch. 3.

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ability, necessity or proportionality sensu stricto of the measure in question,93 in particular in areas where courts lack information or expertise and where broader value judgments have to be made.94 The argument in favour of discretion is particularly strong in areas without strict legal standards, such as the promotion of social integration (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). 26 In the evaluation of specific scenarios, it is necessary to clearly identify both the objective(s) pursued by the state measures and the individual interest(s) at stake. Without careful identification of the objectives and interests, the eventual balancing exercise in the final proportionality assessment sensu stricto runs the risk of being unpersuasive, since the outcome depends on the relative weight of public policy objectives and private interests. Unfortunately, the ECJ can be superfluous in the identification of the aim pursued by the EU legislature – a problem that also affects the operationalisation of the principle of effet utile, for instance with regard to the Dublin Regulations, the Long-Term Residents Directive 2003/109/EC and the Family Reunification Directive 2003/86/EC (see above MN 17). With regard to the Visa Code Regulation (EC) No 810/2009, judges similarly highlighted the dual objective of facilitating legitimate travel and of preventing ‘visa shopping.’95 In such scenarios, judges should discuss the plurality of objectives openly and address them in the balancing exercise that underlies proportionality sensu stricto by adjusting the relative weight of the public policy objective(s) and private interest(s) involved. The test’s dependence on context is one explanation as to why proportionality and related interpretative standards will not necessarily confer equal rights as Union citizens on third-country nationals, since the former benefit from a special position under EU primary law that cannot be extended to immigration and asylum (see above MN 20). 27 The ECJ has regularly taken recourse to general principles of Union law in order to promote their application even before the expiry of the period of transposition of a directive. Where national rules fall within the scope of EU law, the Court should indeed provide the necessary interpretative guidance required by domestic courts to determine whether national rules are compatible with Union law. Therefore, the observance of general principles of Union law cannot be made conditional, in the eyes of the Court, upon the expiry of the period allowed for the transposition of a directive.96 In cases within their jurisdiction, national courts have to interpret domestic law in line with Union law and its general principles. While this obligation is most relevant after the expiry of the transposition period, national courts are obliged, nonetheless, to refrain as far as possible from interpreting domestic law in a manner which might seriously compromise the attainment of an objective pursued by a directive from the date when it enters into force.97

3. More Favourable National Provisions 28

Most directives on immigration and asylum contain an express provision stating that the directive shall not affect the possibilities of the Member States to introduce or retain more favourable provisions – a discretion which most instruments adopted in recent 93 For the ECJ practice in the light of constitutional theory, see Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, ELJ 17 (2011), p. 80, 85–100. 94 For the differentiated ECJ approach to the principle of equality, see Croon, ‘Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non-Discrimination-orAlternative Tales on Equality’, ELJ 19 (2013), 153–173. 95 See ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 52–53. 96 Cf. ECJ, Mangold, C-144/04, EU:C:2005:709. 97 See ECJ, Adeneler, C-212/04, EU:C:2006:443, paras 113–123, in part. 123.

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years qualify to be limited ‘insofar as these [national rules] are compatible with this Directive.’98 These provisions in secondary legislation are generally understood to allow Member States to adopt rules in favour of third-country nationals whose rights and duties are regulated by the directive in question,99 although the precise scope of national discretion remains unclear. Both the new primary law framework of the Treaty of Lisbon and the aforementioned proviso concerning compatibility with the directive in question argue in favour of a cautious approach towards national deviations. It will be demonstrated in this section that, notwithstanding more specific prescription in individual directives, Member States cannot deviate from common rules on the basis of generic clauses on more favourable rules whenever the relevant provision of the instrument in question opts for full harmonisation. Before the entry into force of the Treaty of Lisbon, the Treaty base for most asylum 29 instruments allowed for the adoption of ‘minimum standards’ only, while rules on immigration, border controls and visas had not been subject to a similar restriction.100 It was often argued at the time that the limitation to ‘minimum standards’ in EU primary law and corresponding provisions in secondary legislation should be understood, in a similar way to international human rights law, as a minimum requirement for domestic legislation, while generally allowing for more generous rules for the benefit of migrants, especially in the field of asylum legislation.101 It is no longer relevant whether this position was correct, since the Treaty of Lisbon abandoned the restrictive Treaty base, thereby permitting a higher degree of harmonisation (see above MN 3–4). On this basis, new legislation on asylum has been adopted in the meantime allowing for more favourable national rules only insofar as they are compatible with the relevant directive.102 The interpretation of these rules should acknowledge the broader objective laid down in the EU Treaty to move towards a ‘Common European Asylum System’ as an integral part of the area of freedom, security and justice, which generally aims for more uniformity.103 This constitutional context supports extensive legislative activities (see above MN 5) and argues for a restrictive reading of the clauses on national deviations that compromise uniformity. In order to understand the relevance of the EU law provisions on more favourable 30 national treatment, it is important to point out that the concept of harmonisation is central to the European project, since it entails the approximation of national rules in line with the overarching objective of establishing an ‘ever closer union,’104 in which differences between Member States are replaced by common standards – in line with the more specific objective of a common immigration and asylum policy in Articles 78– 79 TFEU. Tellingly, regulations on immigration and asylum, such as the Schengen Borders Code, the Dublin III Regulation or the Visa Regulation, contain no provision

98

By way of example, see Article 5 Asylum Procedure Directive 2013/32/EU. See Peers, EU Justice, p. 509. 100 Contrast the Treaty bases for asylum in Article 63(1)(a)–(c) and 63(2) EC Treaty as amended by the Treaty of Nice (OJ 2006 C 321E/5) with rules for immigration in Article 63(3) and for border controls and visas in Article 62 EC Treaty. 101 Cf. Storey, Hugo: EU Refugee Qualification Directive: A Brave New World?, IJRL 20 (2008), p. 1, 16–22; and Lambert, ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, ICLQ 55 (2006), p. 161–191. 102 See, Article 3 Asylum Qualification Directive 2011/95/EU, Article 5 Asylum Procedure Directive 2013/32/EU and Article 4 Asylum Reception Conditions Directive 2013/33/EU, while the Dublin III Regulation (EU) No 604/2013 contains, like all regulations on immigration and asylum (see below MN 30), no provision on more favourable national treatment. 103 See also Peers, EU Justice, p. 308. 104 Recital 1 of the Treaty on the Functioning of the European Union. 99

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authorising Member States to adopt more favourable provisions.105 Unlike international human rights law,106 EU harmonisation measures do not establish minimum requirements, but lay down pan-European standards that command primacy over domestic rules in cases of conflict. It is well known that the Court of Justice cautiously defends the uniform and effective application of EU law and generally regards national deviations with suspicion.107 For that reason, one should ascertain on a case-by-case basis whether and if so to what extent Member States may deviate from secondary legislation. In cases of doubt, it should be assumed that legislation supports a pan-European standard from which Member States cannot deviate. 31 The example of consumer protection illustrates how national deviations are addressed by the ECJ.108 The Court of Justice establishes on a case-by-case basis whether individual articles in secondary legislation result in complete (full) harmonisation, which pre-empts national deviations as a uniform standard, while rules that are more favourable are allowed in other scenarios as long as they do not compromise the effective and uniform application of the EU rules in question.109 Whether an article grants Member States discretion depends on an interpretation of the provision taking into account the wording, the general scheme, the drafting history, the aims and the constitutional context (see above MN 10–18), including the Treaty objective to move towards a common immigration and asylum policy (see above MN 29). In some instances the interpretation of individual articles will be straightforward. The term ‘shall’ designates mandatory rules and, by contrast, the word ‘may’ indicates a certain level of flexibility awarded to Member States, which are not free, however, to do as they please, since national deviations are only permitted in so far as the article in question allows for differences. One may conclude by means of interpretation, for example, that Member States ‘may’ choose between solution A and B, while solution C would violate the directive, since it would involve going beyond state discretion.110 With regard to the Schengen Borders Code and the Visa Code, the Court found explicitly that the objective of common standards within the Schengen area argues against Member States’ discretion.111 In short, the definite scope for possible deviations must be ascertained on a caseby-case basis when interpreting EU legislation. 32 As mentioned at the outset, the formulation of EU immigration and asylum directives follows different patterns. Three clauses on more favourable national provisions can be distinguished: (1) Most directives permit for national deviations only ‘insofar as [they]

105 In line with Article 288 TFEU, regulations are – unlike directives – meant to be applied directly, thereby establishing a higher degree of harmonisation. 106 Cf. Article 53 ECHR; many immigration and asylum experts have a background in human rights law (not EU law) and therefore tend to underestimate the preference for uniformity in EU law. 107 Cf. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’, in: Craig/de Bu ´ rca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), p. 323–362. 108 Like migration law, consumer protection is a policy field in which more protection to the benefit of the allegedly weaker party (migrant, consumer) is often considered to be an end in itself but which nevertheless does not necessarily permit more favourable national provisions. 109 See Loos, Full harmonisation as a regulatory concept and its consequences for the national legal orders, Centre for the Study of European Contract Law Working Paper Series No. 2010/03; the contributions to Stu¨rner (ed), Vollharmonisierung im Europa¨ischen Verbraucherrecht? (Sellier, 2010); and Whittaker, ‘Unfair Terms and Consumer Guarantees’, European Review of Contract Law 5 (2009), p. 223–247. 110 Interpretation in the light of the broader context can even indicate that ‘may’ means ‘shall’ or that Member States have only a binary choice (not) to do a certain thing; cf. the opinion of the Council legal service on the Draft Asylum Qualification Directive in Council doc. 14348/02 of 15 November 2002. 111 For visas, see ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 48–50>; and for border controls, see ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, paras 65–68.

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are compatible with this Directive;’112 these provisions require an assessment on a caseby-case basis as to whether specific articles allow for flexibility in line with the interpretative principles above. (2) Other directives explicitly lay down that Member States may deviate from specific provisions, which allow for the adoption of more favourable rules as a result.113 (3) Some directives stipulate in more general terms that Member States remain free ‘to adopt or maintain provisions that are more favourable to the persons to whom it applies’ without indicating, like in the first scenario, that domestic rules must comply with the directive.114 The Family Reunion Directive and the Long-Term Residents Directive, neither of which contain the caveat that more favourable domestic rules concern only those ‘to whom [the Directive] applies’, are the most far-reaching instruments. An interpretation of the Family Reunion Directive and the Long-Term Residents 33 Directive shows that the third scenario above does not allow Member States to deviate from mandatory provisions when they adopt implementing legislation. Member States remain free, however, to retain or adopt more favourable domestic rules outside the scope of the directive. They can establish, for instance, a hardship clause for family reunion, which, as a result, does not bring about rights under the Directive (see Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 20–24) or retain more generous domestic rules on long-term residence status if the latter can be distinguished from the status prescribed by EU law (see Thym, Directive 2003/109/EC, Article 13 MN 2, 4). Similarly, the ECJ recognised that Member States can grant complementary status under domestic law to people whose application for international protection has been rejected as long as states do not call into question the effective implementation of the EU legislation, which in practice requires them to draw ‘a clear distinction … between national protection and protection under the directive.’115 More favourable national protection statuses do not bring about rights under the EU asylum acquis, since Member States act within the scope of their retained powers.116 In short, the precise space for national deviations depends upon EU law; if new directives are adopted, Member States may lose room for manoeuvre they had held previously.

4. Application in Domestic Law Regulations such as the Dublin III Regulation or the Schengen Borders Code are by 34 their very nature directly applicable in domestic legal systems and are therefore binding on all national authorities and courts applying EU immigration and asylum law, whereas directives must be transposed into national law before they may be invoked before national courts as a matter of principle.117 In contrast to regulations, directives often leave some discretion to Member States as to how to regulate certain questions, although the precise scope of flexibility depends on the interpretation of the instrument in question (see above MN 31).118 It is well established in ECJ case law that directives 112 See, the new asylum directives mentioned above MN 29; Article 4(3) Return Directive 2008/115/EC; and Art. 15 Employer Sanctions Directive 2009/52/EC. 113 Cf. Article 4(2) Blue Card Directive 2009/50/EC; Article 4(2) Seasonal Workers Directive 2014/36/ EU; and Article 4(2) ICT Directive 2014/66/EU. 114 See Article 4(2) Researcher Directive 2005/71/EC; Article 4(2) Student Directive 2004/114/EC; and Article 13(2) Procedures Directive 2011/98/EU. 115 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661, para 120. 116 Cf. ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 42–46. 117 Cf. Article 288 TFEU. 118 In practice, the distinction between regulations and directives is not always clear-cut, if some regulations call upon Member States to adopt implementing rules (see Article 2(n) Dublin III Regulation (EU) No 604/2013), whereas some directives are almost as specific and detailed as regulations.

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can also be directly applicable if they have not been implemented correctly by the Member States during the transposition period, if the provision in question is clear, precise and unconditional and it seeks to confer rights upon individuals against the state.119 Moreover, domestic courts are bound to interpret national law, so far as possible, in light of the directive in order to achieve the result sought by the EU legislature, including in situations when the conditions for direct effect have not been met.120 In these cases, a directive may be indirectly relied upon. 35 EU law concentrates on the legislative harmonisation of substantive rules and corresponding procedural guarantees, while the actual application of supranational rules to individuals is left to the Member States as a matter of principle. This entails that the day-to-day decision-making in immigration and asylum cases is done by national authorities, whose decisions can be challenged in domestic courts which may ask the ECJ to interpret EU rules under the preliminary reference procedure of Article 267 TFEU. Given that immigration and asylum have a tangible practical and operational dimension,121 the EU institutions support the convergence of administrative practices through guidelines on the interpretation of EU law, networks among practitioners and financial support for transnational cooperation.122 There are also examples of enhanced transnational cooperation, in particular through the FRONTEX border agency and the European Asylum Support Office (EASO). These prototypes for transnational cooperation focus on convergence rather than the direct application of the EU asylum and immigration acquis towards individuals following a quasi-federal model. While EU primary law permits and supports closer transnational cooperation, it does not at present sanction the move towards a quasi-federal bureaucracy replacing national authorities in the day-to-day decision-making on migration issues (see Thym, Legal Framework for Entry and Border Controls, MN 7). 36 When adjudicating on individual cases, Member States apply their own domestic rules on administrative and judicial procedure unless there are more specific procedural rules in secondary legislation.123 EU immigration and asylum legislation contains numerous provisions on procedural aspects, although many of these clauses remain abstract when stipulating, for instance, that Member States ‘shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy.’124 These provisos require the continued existence of national administrative rules, which must be interpreted in the light of EU law in cases of conflict; national laws fill the gaps of EU immigration and asylum law. This application of domestic procedural guarantees is often referred to as the principle of procedural autonomy.125 The ECJ has repeatedly reaffirmed this principle, while also establishing two limits: when applying national rules Member States must ensure, firstly, that the rules for EU-related claims are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Community law practically impossible or excessively difficult (principle of effectiveness).126 The principle of effectiveness, in particular, is See Craig/de Bu´rca, EU Law, 5th edn (OUP, 2011), ch. 4. Cf. ECJ, Pfeiffer, C-397/01-C-403/01, EU:C:2004:584, paras 110–119. 121 See Costello, Administrative Governance, p. 322; and Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 20–23. 122 See Thym, Migrationsverwaltungsrecht, p. 347–352. 123 See von Danwitz, Europa ¨ isches Verwaltungsrecht (Springer, 2008), p. 302–312. 124 Article 46(4) Asylum Procedure Directive 2013/32/EU concerning judicial action against the rejection of an asylum application. 125 See Craig, Administrative Law, ch. 23. 126 See ECJ, Rewe vs. Landwirtschaftskammer fu ¨ r das Saarland, 33/76, EU:C:1976:188, para 5. 119 120

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often used by the ECJ to limit the discretion of Member States, although its operationalisation in practice remains inherently difficult to predict.127 National rules on administrative and judicial procedure must comply not only with 37 specific rules in EU legislation and the limits to the principle of procedural autonomy (see above MN 35–36) but also with the Charter of Fundamental Rights, which binds Member States whenever they are implementing Union law (see below MN 47–48). In this respect, the right to effective judicial protection in Article 47 of the Charter plays a central role, since it is often relied upon to challenge restrictive national provisos.128 ECJ judges have made clear that Article 47 of the Charter applies in these instances, although the case law also emphasises that the special circumstances of asylum procedures can be taken into account, for instance through short time limits;129 similarly, the Charter does not require either automatic suspensive effect or the guarantee to remain in the territory pending proceedings.130 In short, the precise contents of procedural human rights must be analysed carefully taking into account supranational and international case law.131 The same applies to the human rights guarantees for administrative procedure in Articles 41–42 of the Charter, which can be applied within domestic legal orders as general principles of Union law.132 The relevance of these supranational guarantees will also be dependent upon the state of affairs in domestic legal orders: Member States with sophisticated procedural guarantees will be less affected than countries with limited options for judicial review.

III. Territorial Scope (Member State Participation) Mirroring the asymmetrical composition of the intergovernmental Schengen Agree- 38 ment, EU immigration and asylum law contains country-specific opt-outs to this date. More specifically, we need to distinguish different opt-out arrangements for the United Kingdom, Denmark and Ireland, which were fortified by some procedural twists and a novel degree of selectivity in the Treaty of Lisbon. Unfortunately, the country-specific opt-outs do not follow a uniform rationale. There are differences between the rules governing Denmark on the one hand and the United Kingdom and Ireland on the other. Moreover, we are faced with two sets of rules for these countries: firstly, measures building upon the Schengen acquis laid down in the Schengen Protocol and,133 secondly, measures in the area of freedom, security and justice that do not form part of the Schengen acquis, are governed by separate protocols134 with 127

See, again, Craig, Administrative Law, ch. 23. See Bast, ‘Of General Principles and Trojan Horses’, GLJ 11 (2010), p. 1006, 1020–1023; and Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193. 129 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 49–69. 130 See ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 44–53. 131 For a recent study, see Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014). 132 See ECJ, HN, C-604/12, EU:C:2014:302, paras 49–51; and ECJ, Mukarubega, C-166/13, EU:C:2014:2336, paras 42–45; for further comments, see Hofman/Mihaescu, ‘The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’, EuConst 9 (2013), p. 73–101. 133 See today’s Protocol (No. 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and its predecessor (OJ 1997 C 340/93); for how to define which measures build upon the Schengen acquis, see ECJ, United Kingdom vs. Council, C-77/05, EU:C:2007:803, paras 54–68. 134 See today’s Protocol (No. 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295), which builds upon previous versions (OJ 128

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special procedures.135 Altogether, we therefore need to distinguish four distinct opt-out arrangements for the United Kingdom/Ireland and Denmark and for measures (not) building upon the Schengen acquis.136 39 In practice, the recitals of all legislative acts indicate whether the United Kingdom, Ireland and/or Denmark are bound by the relevant instrument and whether it is considered to build upon the Schengen acquis.137 The overall picture emanating from these diverse arrangements is complex and can be difficult to monitor. In order to facilitate orientation, the introductions to the different parts of this volume include a list of the measures commented upon with an indication of whether the measure in question applies to the United Kingdom, Ireland and/or Denmark. Corresponding overviews can be found in the sections on border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 5), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 5) and asylum (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 7).

1. Denmark 40

Denmark did not object to the abolition of internal border controls and had subscribed to the intergovernmental Schengen Conventions prior to the Treaty of Amsterdam. It nonetheless asked for an opt-out, since the supranationalisation of justice and home affairs called into question caveats on these matters that had served as justifications for the Danish government in its campaign for a ‘yes’ vote in the second referendum on the Treaty of Maastricht.138 However, the Danish government did not want to leave the Schengen zone and therefore negotiated a ‘political opt-in’ and ‘legal opt-out’139, which maintained its status as a member of the Schengen group while guaranteeing that the supranational integration method would not apply; the opt-out is based on ‘methodology rather than ideology.’140 As a result, Denmark cannot at present – unlike the United Kingdom and Ireland – opt into supranational decision-making on a case-by-case basis. However, it is allowed to terminate or modify the opt-out by means of a simple declaration the activation of which has been made politically conditional upon another referendum which the government has so far hesitated to call despite occasional calls to the contrary.141 At the time of writing, it seemed that a referendum might be called in 1997 C 340/295; and OJ 2006 C 321 E/198); and today’s Protocol (No. 22) on the Position of Denmark (OJ 2008 C 115/299), which replaces the original Protocol (OJ 1997 C 340/299). 135 Allegedly, two different working groups preparing the Amsterdam Treaty designed the rules and forgot to align their substance; later IGCs drafting the Treaty of Nice and the Constitutional Treaty retained their distinct outline; cf. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration’, CML Rev. 37 (2000), p. 345, 352. 136 The presentation in this section builds on Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu¨tze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2015), forthcoming. 137 In most instruments, the information is contained in the last recitals. 138 The Protocol on the Position of Denmark enshrined in firm Treaty rules the compromise at the 1992 European Council in Edinburgh, the legal status of which had remained precarious; cf. Howarth, ‘The Compromise on Denmark and the Treaty on European Union’, CML Rev. 31 (1994), p. 765–805. 139 den Boer, ‘Justice and Home Affairs Cooperation in the Treaty on European Union’, Maastricht Journal of European and Comparative Law 4 (1997), p. 310, 311. 140 Hedemann-Robinson, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark’, in: O’Keeffe/Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery Law, 1994), p. 189, 297. 141 Article 7 of the Protocol No. 16 on Denmark allows for its renunciation at any time, also in part. Moreover, Article 8 allows for the substitution of the strict opt-out by a flexible British-style solution, which permits case-specific opt-ins described below.

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2016 to switch to the more flexible British/Irish position as a result of which Denmark could possibly decide to opt-in various immigration and asylum measures. In line with its original compromise to oppose supranationalisation as a member of 41 the Schengen area, Denmark retains, with regard to measures building upon the Schengen acquis,142 the right to ‘decide within a period of 6 months … whether it will implement this decision in its national law.’ If it decides to do so, this decision will create an obligation under international law between Denmark and other Member States.’143 As a result, Denmark is bound by measures building upon the Schengen acquis on the basis of public international law.144 The experience in recent years does not indicate any major legal issues directly related to the opt-out.145 One reason for this comparatively trouble-free functioning of the opt-out may be the similarity between the Danish position and the situation of the neighbouring countries Norway and Iceland, which are both associated with the Schengen acquis on the basis of an international association agreement (see Thym, Legal Framework for Entry and Border Controls, MN 29). Mirroring its status under the Schengen Protocol, Denmark has associated itself with the Dublin II Regulation (EC) No 343/2003 on asylum jurisdiction through the conclusion of international agreements between Denmark and the Community/Union through the conclusion of an international agreement.146 This peculiarity confirms that the Danish opt-out is not as such directed against European cooperation on immigration and asylum law.

2. United Kingdom and Ireland In contrast to Denmark, the United Kingdom objects to the political project of 42 border-free travel. Consecutive British governments have maintained that the geographical position of the British Isles, the traditional absence of domestic identification requirements (such as ID cards) and the symbolism of Schengen cooperation as a means for closer European integration warned against British participation.147 Nonetheless, the Labour government under Tony Blair’s leadership was willing to consent, at the final stages of the intergovernmental conference for the Amsterdam Treaty, to the integration of the Schengen acquis into the EU framework under the condition that Britain retained a special status on the basis of a flexible opt-out with an option to sign up to individual projects. Ireland was factually obliged to follow its neighbour, since it wanted to maintain the Common Travel Area providing for passport-free travel in the British Isles, including Northern Ireland.148 As in the case of monetary 142

By contrast, initiatives which are not part of the Schengen acquis are subject to a strict opt-out. Article 4(1) Protocol No. 16 on Denmark; if Denmark decides against participation, the other Member States may, under Article 4(2), ‘consider appropriate measures to be taken’, which may justify the reintroduction of border controls in extreme scenarios; see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos, 2004), p. 110–114, available online at http://www.ungleichzeitigkeit.de [last accessed 13 November 2015]. 144 The Protocol refrains from a definition of international law; in essence, general principles of Union law, such as direct and supreme effect, and the ECJ’s jurisdiction do not apply. 145 In 2011, the Danish government announced plans to reintroduce limited border controls at the insistence of the populist peoples’ party. The project was abandoned when the general elections in 2012 brought a centre-left government into power. 146 See the Council Decision 2006/188/EC (OJ 2006 L 66/37) approving the agreement; a similar agreement has not been concluded so far for the Dublin III Regulation (EU) No 604/2013. 147 See Wiener, ‘Forging Flexibility – The British ‘No’ to Schengen’, EJML 1 (1999), p. 441, 456–9 and the evidence in House of Lords Select Committee on the European Communities, Schengen and the United Kingdom’s Border Controls, 7th Report, Session 1998/99. 148 See Fahey, ‘Swimming in a Sea of Law’, CML Rev. 47 (2010), p. 673, 679–82 and the Declaration (No. 56) of Ireland (OJ 2008 C 306/268). Ireland has later occasionally pursued a more restrictive approach and opted out of some initiatives despite of British participation. 143

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union, the asymmetry of the Schengen law was characterised by an inherent pragmatism: granting an opt-out to three Member States was a compromise to secure the unanimity necessary for Treaty change. Britain would not have consented to supranationalisation in Amsterdam without an opt-out. 43 Upon closer inspection, the British/Irish opt-out is the most prolific expression of the a` la carte logic of principled freedom for Member States.149 Firstly, Britain and Ireland retain the right, during the legislative process, to ‘notify … that they wish to take part’ in the adoption of a proposal.150 On this basis, the United Kingdom and/or Ireland took the route of ex ante participation in the legislative procedure; they decided to participate in many (not all) measures on immigration and asylum (the precise scope of participation will be confirmed in the sections with introductions to the chapters on border controls, immigration and asylum; see above MN 39). Originally, the arrangement did not provide for subsequent withdrawal after a decision to participate had been made; any decision to opt-in was a one-way street towards closer integration. The Lisbon Treaty reversed this situation by granting Britain and Ireland the option of unilateral withdrawal (see below MN 45). Secondly, both states retain the option of ex post accession at a later stage. Britain and Ireland ‘may at any time request to take part in some or all of the provisions’ that define the original Schengen acquis or which have been adopted in other segments in the area of freedom, security and justice.151 Indeed, both countries decided to join in important areas of the original Schengen cooperation, albeit without subscribing to the abolition of internal border controls.152 The combined effect of ex ante and ex post participation was quite constructive. 44 The United Kingdom’s and Ireland’s freedom of choice is not absolute. The Schengen Protocol limits participation to proposals and initiatives to those ‘which are capable of autonomous application.’153 This meant, in the eyes of the Council, that two British requests for participation in the borders agency Frontex and a regulation on security features in travel documents had to be rejected, since both were intractably linked to aspects of the Schengen acquis, in particular to border controls, which the United Kingdom had refused to endorse.154 The ECJ confirmed this standpoint in two judgments which demonstrated a certain willingness on the side of the Court to ensure that the opt-out arrangements do not undermine the uniform and coherent application of Schengen law.155 Since the Lisbon Treaty leaves the relevant provisions intact, this case law remains relevant: Britain may not sign up to measures building on the Schengen acquis if they require the application of the broader legislative context.156

149 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu ¨ tze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2015), sect. II.A.3 (forthcoming). 150 Article 3(1) Protocol (No. 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295); similarly for Schengen-related instruments, see Article 5(1) Protocol (No. 19) on the Schengen acquis (OJ 2008 C 115/290). 151 See Article 4 Schengen Protocol and Article 4 Protocol No. 21. 152 See, on the UK, Decision 2000/365 (OJ 2000 L 131/43) and, on Ireland, Decision 2002/192 (OJ 2002 L 64/20); for non-Schengen measures see Decision 2009/26/EC (OJ 2009 L 10/22), Decision 2009/350/EC (OJ 2009 L 108/53) and Decision 2009/451/EC (OJ 2009 L 149/73). 153 Advocate General Verica Trstenjak, United Kingdom vs. Council, C-77/05, EU:C:2007:419, para 107. 154 Legally, both disputes concerned the delimitation of Articles 4–5 Schengen Protocol and the (more flexible) rules of Protocol No. 21 (n 134); for detail see ECJ, United Kingdom vs. Council, C-77/05, EU:C:2007:803; and ECJ, United Kingdom vs. Council, C-137/05, EU:C:2007:805. 155 See Fletcher, ‘Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty’, EuConst 5 (2009), p. 71, 83–88. 156 See Piris, The Lisbon Treaty (CUP, 2010), p. 199.

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During the intergovernmental conference drafting the Lisbon Treaty, the British 45 government demanded and obtained further flexibility.157 London insisted upon the right to opt out of any amendment of instruments in whose adoption it had earlier decided to participate (for example, the Asylum Qualification Directive158). By means of a simple declaration, the UK and/or Ireland may withdraw itself from an ongoing legislative process, although it is bound by the instrument the other Member States want to modify.159 To be sure, this can only be done when amendments are made: without a proposal for legislative change, Britain cannot opt out. In cases of amendments, however, London retains the ability to pick and choose as it wishes. From the perspective of legal certainty, it is regrettable that Britain (and Ireland) will continue to be bound by previous rules, even if these rules are repealed with regard to all other Member States because of an amendment.160 Whenever the British or the Irish exclude themselves from amendments, the Council may vote against British participation in related instruments, from which the UK and/or Ireland do not wish to retract, if such ‘rump’ legislation cannot be applied effectively.161 The example of Frontex demonstrates that the ECJ may support the Council in cases of conflict (see above MN 44).

IV. Human Rights and International Law EU legislation is based on the general commitment in Article 6 TEU to recognise the 46 rights, liberties and principles laid down in the Charter of Fundamental Rights (see below MN 47–50), the European Convention of Human Rights (see below MN 51–52) and the unwritten general principles of Union law, which may include international human rights (see below MN 53–55). It is beyond doubt that legislation in the field of immigration and asylum must comply with the human rights standards put forward in the Charter and related documents. By contrast, the weight of international treaties concluded with third states requires careful analysis, since the ECJ traditionally attaches great importance to the autonomy of the EU legal order vis-a`-vis the international legal environment (see below MN 56–60).

1. EU Charter The entry into force of the Treaty of Lisbon rendered the Charter of Fundamental 47 Rights legally binding: the rights and principles in the Charter shall have the same legal value as the Treaties.162 The Charter is binding on the EU legislature and can constitute grounds to challenge the validity of legislative acts before the Court of Justice (irrespective of whether the recitals of EU legislation invoke the Charter expressly).163 Moreover, 157 See No. 19 lit. l of the IGC Mandate, Council doc. 11177/07 of 26 June 2007; on the allegedly tough negotiations see Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon,’ EuConst 4 (2008), p. 20, 28. 158 Cf. recital 50 of Asylum Qualification Directive 2011/95/EU in contrast to recital 38 of the former Asylum Qualification Directive 2004/83/EC. 159 See Article 5(2)–(5) Schengen Protocol and Article 4a Protocol No. 21. 160 Legally, the repeal of the earlier measure through new legislation does not extend to the United Kingdom, since the latter is not bound by the amendment; cf. by way of example, Article 40(1) of the Asylum Qualification Directive 2011/95/EU; see also House of Lords Select Committee on European Union, 7th Report of the Session 2008–09, paras 15–20 and Peers, EU Justice, p. 78–84. 161 See Article 5(3) Schengen Protocol and Article 4a(2) Protocol No. 21. 162 Cf. Article 6(1) TEU. 163 Procedurally, this can be done by means of an action for annulment under Article 258 TFEU or by means of preliminary reference under Article 267 TFEU, which is mandatory also for courts of first instance when they consider EU secondary law to be invalid; cf. ECJ, Foto Frost, 314/85, EU:C:1987:452.

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directives and regulations have to be interpreted in accordance with the Charter as far as possible in cases of potential conflict (see above MN 14). Aside from the EU institutions, Member States are also bound by the Charter but ‘only when they are implementing Union law.’164 The precise meaning of that provision has been (and still is) subject to intense debate in judicial and academic circles that culminated in an exchange of blows between the European Court of Justice and the German Federal Constitutional Court.165 In its Åkerberg Fransson judgment, the ECJ maintained that Member States are bound ‘within the scope of European Union law.’166 Closer inspection demonstrates that the precise scope of this formulation remains ambiguous and has been subject to a number of restrictive follow-up judgments.167 48 Any decision on whether national measures fall within the scope of the Charter therefore requires careful analysis of whether the factual circumstances of the dispute and the domestic provision in question are covered by EU legislation on immigration and asylum ratione materiae, personae, temporis and loci.168 Whenever EU legislation does not apply to specific subject areas or categories of persons, the Charter doesn’t apply either. One may activate national constitutions and/or the ECHR instead, but the ECJ does not hold jurisdiction on these instruments.169 This means, by way of example, that the Charter applies to the living conditions of those with subsidiary protection status (as far as EU legislation regulates their status in Articles 20–35 Asylum Qualification Directive 2011/95/EU), while the same subject areas cannot be analysed in light of the Charter for those awarded complementary humanitarian protection under domestic law.170 Similarly, not all border control activities can be assessed in the light of the Charter: the latter applies only in so far as the Schengen Borders Code or related instruments prescribe obligations that the national border police has to respect.171 Notwithstanding these caveats, it is well established that the exercise of national implementing discretion can be judged in the light of the EU Charter in cases where EU legislation leaves the Member States different options how to achieve the objective prescribed in a Directive or Regulation.172 49 When interpreting the Charter, the meaning of specific guarantees can often be identified under recourse to the European Convention of Human Rights and corresponding case law of the ECtHR, since the Charter calls for a parallel interpretation of both instruments whenever it contains rights which are corresponding to guarantees in the ECHR.173 To refer to the case law of the human rights court in Strasbourg is standard practice for EU judges in Luxembourg, even though the EU has not yet acceded formally to the ECHR (see below MN 51). Moreover, the official explanations attached to the Charter are to be given due regard (see above MN 13). As is the case with most human rights, guarantees in the Charter are not absolute: interferences can 164

Article 51(1) TFEU. For further comments, see Thym, ‘Separation versus Fusion’, EuConst 9 (2013), p. 391–419. 166 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 19. 167 See Thym, ‘Blaupausenfallen bei der Abgrenzung von Grundgesetz und Grundrechtecharta’, Die ¨ ffentliche Verwaltung 2014, p. 941–951; and Fontanelli, ‘Implementation of EU Law through Domestic O Measures after Fransson’, EL Rev. 39 (2014), p. 682, 689–697. 168 For a typology, see Thym, ibid., p. 948–950. 169 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44 rejects an autonomous interpretation of the ECHR in areas not covered by Union law and the EU Charter. 170 See ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 42–46. 171 See ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42. 172 For the former Dublin II Regulation (EC) No 343/2003, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 65–68; and for the Family Reunification Directive 2003/86/EC, see ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, paras 22–23, 104–105. 173 See Article 52(3) of the Charter. 165

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be justified if they pursue a legitimate aim in a proportionate manner.174 When it comes to the contents, the Charter contains both individual rights and more abstract ‘principles’, in particular in Title IV on solidarity.175 Principles require implementation by means of either Union or domestic legislation, which can be applied by courts only in conjunction with implementing measures (although the precise degree of legal obligations remains uncertain).176 In practice, this concerns primarily the social rights in Articles 27 to 38 of the Charter. The relevance of individual guarantees will be discussed in the thematic introductions 50 to the different chapters of this commentary. Relevant provisions include procedural guarantees for administrative proceedings and judicial review (see above MN 37). With regard to border controls and visas, the extraterritorial application and the relative liberty of public authorities in regulating access by migrants to EU territory are pertinent (see Thym, Legal Framework for Entry and Border Controls, MN 32–34). In the context of legal migration, the guarantee of private and family life in Article 7 of the Charter (see Thym, Legal Framework for EU Immigration Policy, MN 52–56), the provisions on equal treatment (see ibid., MN 37–42) as well as limited guarantees on the labour market and intra-European mobility deserve closer attention (see ibid., MN 34–35), whereas Articles 4 and 18 of the Charter are crucial for asylum law, since they reaffirm guarantees under the ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 56–63).

2. European Convention In its human rights case law, the ECJ has traditionally afforded special significance to 51 the European Convention of Human Rights, although it does not formally have the rank of primary Union law. Article 6(2) TEU allows for the formal accession of the EU to the ECHR and a draft accession agreement had been negotiated but was blocked by the ECJ due to concerns about the autonomy of the supranational order.177 Remarkably, asylum law was one of the issues of concern for judges in Luxembourg,178 since the human rights court in Strasbourg had challenged the principle of mutual respect, which, in the eyes of the ECJ, underlies cooperation in the area of freedom, security and justice, including the Dublin III Regulation (see Hruschka/Maiani, Regulation (EU) No 604/ 2013 Article 3 MN 7–16). It should be noted in this respect that the future formal accession of the EU to the ECHR would primarily have procedural consequences and would not change the constitutional status of the ECHR under EU law,179 which, even after accession, would retain a formal rank below primary law, like other international treaties concluded by the EU (see below MN 55). This implies that the position of the ECJ prevails in a rare case of conflict with the ECtHR, while the principled orientation of the Charter at the ECHR guarantees widespread convergence in regular circumstances (see above MN 49).

174

A generic provision on the justification of restrictions can be found in Article 52(1) of the Charter. See Article 52(5) of the Charter, which leaves open which provisions guarantee individual rights or contain only ‘principles’. 176 Cf. Article 52(5) of the Charter, which excludes, as a result, that individual rights can be deduced directly from principles; for further comments, see Ja¨a¨skinen, ‘Fundamental Social Rights in the Charter’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1703–1714. 177 See ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 178 See ECJ, ibid., paras 192–195. 179 See ECJ, ibid., paras 189–190. 175

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Introduction

Although the ECHR contains no right to asylum, the case law of the European Court of Human Rights in Strasbourg has become increasingly relevant to immigration and asylum law in recent years. This will be discussed in this commentary for private and family life under Article 8 ECHR (see Thym, Legal Framework for EU Immigration Policy, MN 52–56) and the prohibition of inhuman and degrading treatment as well as the guarantee of an effective remedy in line with Articles 3 and 13 ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 56–60). Moreover, the question of a right to entry and extraterritorial applicability will be discussed (see Thym, Legal Framework for Entry and Border Controls, MN 32–39).

3. Geneva Convention and International Human Rights Article 78(1) TFEU mandates that the EU asylum acquis complies with the Geneva Convention, the 1967 Protocol relating to the status of refugees and other relevant treaties. This obligation has been put into effect by the ECJ, which reaffirmed, in a number of judgments, that the EU asylum acquis must be interpreted taking into account the Geneva Convention (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 47–54). From a legal perspective, this obligation to respect the Geneva Convention and the 1967 Protocol flows from EU primary law, since the EU has not formally acceded to the Geneva Convention or assumed the functions of Member States by means of functional succession (as it had previously done with regard to the GATT Agreement).180 As a result, the ECJ holds no autonomous jurisdiction to interpret the Geneva Convention: it only does so in conjunction with secondary Union law, in particular the Asylum Qualification Directive 2011/95/EU. Recital 23 of the Directive states explicitly that its provisions should ‘guide the competent national bodies of Member States in the application of the Geneva Convention.’ It also reaffirms that the Geneva Convention and the Protocol constitute the cornerstone of the international legal regime for the protection of refugees.181 54 International human rights treaties are not directly binding upon the European Union, since it has not acceded to them under international law. They can however be relied upon indirectly as a source of inspiration for the interpretation of the unwritten general principles of Union law that complement the human rights in the Charter.182 On this basis, the ECJ recognised explicitly that the International Covenant on Civil and Political Rights (ICCPR)183 can be relied upon in order to identify the contents of EU human rights – although judicial practice has remained sketchy, not least since the international guarantees on migration usually fall short of the ECtHR jurisprudence.184 Moreover, the ECJ emphasised that the views of international treaty bodies, such as the Human Rights Committee, are not legally binding.185 Other international agreements cannot be considered legally binding ipso jure, since the ECJ insists that they must be binding for all Member States. As a result, the UN Convention on the Rights of the Child186 and the 53

180

See ECJ, Qurbani, C-481/13, EU:C:2014:2101, paras 22–29. Recital 4 Asylum Qualification Directive 2011/95/EU. 182 Cf. Article 6(3) TEU, although the provisions does not list international human rights treaties explicitly; for further reflection, see Rosas, ‘The Charter and Universal Human Rights Instruments’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1685–1702. 183 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37. 184 See Fitzpatrick, ‘The Human Rights of Migrants’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 169, 171–178. 185 See ECJ, Grant, C-249/96, EU:C:1998:63, para 46. 186 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37. 181

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European Social Charter187, as well as the UN188 and the European189 conventions against torture190 can be relied upon in order to identify unwritten principles of European Union law, since these instruments have been ratified by all the current Member States of the EU. When applying these conventions we have to ensure that potential reservation or interpretative declarations of the Member States, which are particularly widespread in the case of the European Social Charter, are respected; EU law cannot be used to bypass these caveats. By contrast, the European Union is not bound by international human rights treaties 55 that have not been ratified by all Member States.191 This implies in particular that the UN Convention on Migrant Workers192 has no legal effect in the EU legal order, since this instrument has not been ratified by a single EU Member State.193 The same applies to most Conventions of the International Labour Organisation, most of which have not been ratified by all EU Member States. As a result they cannot be relied upon as a legal yardstick for judicial review in the field of EU immigration and asylum law.194 Finally, most international treaties concluded within the framework of the Council of Europe with a potential impact upon migration law obtained only a limited number of ratifications (see below MN 59) – with the notable exception of the European Convention of Human Rights and the European Social Charter, which form the bedrock of Europe’s regional human rights obligations thus far and which have been discussed above (see MN 51, 54).

4. Other International Agreements With regard to international treaties on other themes than human rights, one should 56 distinguish between treaties between the EU and third states (or international organisations) and treaties of the Member States (see below MN 58). In so far as international agreements concluded by the European Union are concerned, it should be remembered that ever since the seminal Costa/E.N.E.L. judgment the ECJ has categorically upheld that the EU Treaties have established an autonomous supranational legal order distinct from public international law.195 It stipulates, on this basis, that the legal effects of international agreements in the EU legal order are determined by the latter. It is 187 See ECJ, ibid., para 39; the European Social Charter has a certain impact in the field of family reunion, see Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 217; generally, see O’Cinne´ide, ‘Migrant Rights under the European Social Charter’, in: Costello/Freedland (eds), Migrants at Work (OUP, 2014), p. 282–302. 188 See the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, UNTS Vol. 1465, p. 85; for ratifications, see http:// indicators.ohchr.org [last accessed 24 November 2015]. 189 See the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987, CETS No. 126; for ratifications, see http://conventions.coe.int [last accessed 24 November 2015]. 190 Their relevance for the general principles of EU law has not been recognised explicitly by the ECJ yet. 191 Cf. argumentum e contrario ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37; as well as Article 53 of the Charter, although it could be argued that the non-ratification by one or two Member States does not prevent the ECJ from having recourse to the agreement as a source of inspiration. 192 See the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, UNTS vol. 2220, p. 3; for ratifications, see http://indicators.ohchr.org [last accessed 24 November 2015] and for further comments, see Cholewinski, Migration and Human Rights. The United Nations Convention on Migrant Workers’ Rights (CUP, 2009). 193 Cf. the list of ratifications at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en [last accessed 24 November 2015]. 194 For an overview of the ILO instruments, see Wiesbrock, Legal Migration, p. 247–252. 195 Cf. ECJ, Costa/E.N.E.L, 6/64, EU:C:1964:66.

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settled case law that international agreements concluded by the EU institutions ‘form an integral part of [Union] law’196 and benefit, as a result, from the same effects as regular EU law within the domestic legal orders of the Member States, including primacy over national law in cases of conflict.197 The ECJ assumes, moreover, that international agreements can be relied upon to challenge the validity of EU legislation.198 Provisions of international agreements concluded by the EU have a hierarchical status above secondary legislation but below the EU Treaties; not even resolutions of the UN Security Council may claim a higher normative rank than EU primary law,199 nor can the European Convention on Human Rights and corresponding ECtHR case law after the EU’s accession (see above MN 51). 57 It should be highlighted that the practical relevance of international agreements concluded by the EU is compromised significantly by settled ECJ case law rendering the effects mentioned above subject to the direct applicability of the relevant international agreements. Provisions in international treaties that are not directly applicable cannot be relied upon by individuals or courts in order to challenge the validity of secondary Union law or domestic rules.200 In assessing whether international treaties can be directly applied, the ECJ correctly highlights their international legal character and the corresponding applicability of the Vienna Convention on the Law of Treaties in the context of interpretation of agreements concluded by the EU,201 which may deviate from the interpretative standards for supranational EU law (see above MN 10– 20). This implies, in accordance with settled case law, that even provisions with an identical wording may have a different meaning to the equivalent rules in EU legal instruments.202 While the ECJ has traditionally been rather strict towards international agreements with a global reach, such as world trade law or the Convention on the Law of the Sea, it is more generous when it comes to association agreements.203 Among the association agreements, the Ankara Agreement between the EEC and Turkey has become particularly relevant to immigration law in recent years (see above MN 19; and Thym, Legal Framework for EU Immigration Policy, MN 58). 58 International agreements concluded by Member States (not the European Union) are not binding on the EU institutions under public international law. While international human rights instruments ratified by all Member States can be invoked indirectly in the context of the unwritten general principles of Union law (see above MN 54), other agreements concluded by Member States cannot be relied upon in the EU legal order, even if they have been ratified by all Member States: the ECJ maintains that such agreements can only be invoked if they reflect customary international law and are directly applicable204 – a double condition that is rarely met. In so far as these agreements were concluded prior to EU accession (or the conferral of corresponding competences to the EU level), they may benefit, however, from the safeguard clause in 196

ECJ, Haegemann II, 181/73, EU:C:1974:41, para 5. On the conditions for direct applicability and primacy, see below MN 57. 198 See, generally, ECJ, IATA & ELFAA, C-344/04, EU:C:2006:10, para 34; and, for visa policy, ECJ, Soysal & Savatli, C-228/06, EU:C:2009:101, paras 58–61. 199 Cf. ECJ, Kadi & Al Baraak/Rat & Kommission, C-402/05 & C-415/05 P, EU:C:2008:461, in part. paras 305–309. 200 In the absence of direct applicability, the ECJ also excludes indirect effects, such as consistent interpretation; for further comments, see Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 320–323. 201 See ECJ, Walz, C-63/09, EU:C:2010:251, para 23. 202 This was established first by ECJ, Polydor, 270/80, EU:C:1982:43, paras 14–21; and has been reaffirmed for immigration-related agreements by ECJ, Demirkan, C-221/11, EU:C:2013:583, paras 44–61. 203 See Thym, ibid., p. 322–323. 204 Cf. ECJ, Intertanko, C-308/06, EU:C:2008:312, paras 48–52. 197

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Article 351 TFEU which provides that the EU Treaties and secondary legislation do not prevent Member States from fulfilling their obligations under pre-existing agreements with third states.205 This safeguard for earlier agreements is static, i. e. Member States have lost the capacity to amend them.206 Furthermore, the conclusion of new agreements in areas covered by secondary EU legislation is an exclusive competence of the European Union.207 In practice, respect for existing obligations is often guaranteed through explicit safeguard clauses in EU secondary legislation stating that Member States remain free to retain more favourable national provisions in line with international agreements (see Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 16– 19). From a legal point of view, these provisions are declaratory in nature in so far as they relate to pre-existing agreements concluded prior to accession to the European Union that are covered by Article 351 TFEU. In line with the objective of protecting existing legal obligations, explicit safeguard 59 clauses in secondary legislation affect only Member States that had ratified the agreement(s) in question before the adoption of secondary EU legislation. They can concern bilateral treaties on commerce and navigation, which never gained much influence in most domestic legal orders.208 More important are multilateral agreements within the framework of the Council of Europe, which – like the bilateral treaties on commerce and navigation – confer reciprocal rights only upon the nationals of state parties and did not gain much practical influence either.209 It is therefore necessary to assess on a case-by-case basis which Member States ratified an agreement: the European Convention on the Legal Status of Migrant Workers of 1977 has been ratified by eleven state parties, including six EU Member States and five third states,210 the European Convention on Social and Medical Assistance of 1953 applies to several Member States, as well as Norway, Iceland and Turkey,211 and the European Convention on Establishment of 1955 has been ratified by ten EU Member States, as well as Norway, Iceland and Turkey.212 Given that the nationals of Norway and Iceland hold extensive rights under the EEA Agreement, the practical relevance of these conventions is extremely limited at present: they relate in particular to Turkish nationals residing legally in Member States to which the conventions apply. For more comments, see Koutrakos, EU International Relations Law, 2nd edn (Hart, 2015), ch. 9. See ibid. and ECJ, Commission vs. Austria, C-205/06, EU:C:2009:118. 207 See Article 3(2) TFEU. 208 See Bast, Aufenthaltsrecht, p. 81–87; and Randelzhofer, Der Einfluss des Vo ¨ lker- und Europarechts auf das deutsche Ausla¨nderrecht (de Gruyter, 1980), p. 32–40. 209 See Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 286– 288. 210 Convention of 24 November 1977, CETS No. 93, entry into force on 1 May 1983; it has been ratified by France, Italy, the Netherlands, Portugal, Spain and Sweden – as well as the third states Albania, Moldova, Norway, Turkey and Ukraine; see http://conventions.coe.int/[last accessed on 24 November 2015]. 211 Convention of 11 December 1953, CETS No. 14, entry into force on 1 July 1954, which has been ratified by the third states mentioned above as well as Belgian, Denmark, Estonia, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden and the United Kingdom; see ibid. 212 Convention of 13 December 1955, CETS No. 19, entry into force on 23 February 1965, which has been ratified by the third states mentioned above as well as Belgium, Denmark, Germany, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Austria, Sweden and the United Kingdom; see ibid. 205 206

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PART B ENTRY AND BORDER CONTROLS I. Legal Framework for Entry and Border Controls Selected Bibliography: Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Blumann (ed), Les frontie`res de l’Union europe´enne (Bruylant, 2013); den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Goodwin-Gill/McAdam, The Refugee in International Law, 3rd edn (OUP, 2007); Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2003); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Maes/Foblets/De Bruycker/Vanheule/Wouters (eds), External Dimensions of EU Migration and Asylum Law and Policy (Bruylant, 2011); Martenczuk/van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (VUB Press, 2008); Meloni, Visa Policy within the European Union Structure (Springer, 2005); Muzak, in Mayer & Sto¨ger (2012), ‘Articles 77–80 TFEU’, in: Mayer/Sto¨ger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012); Pastore, ‘Visas, Borders, Immigration’, in: Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP, 2004), p. 89–143; Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014); Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); Ryan/Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010); Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Weiß, ‘Articles 77–80 TFEU’, in: Streinz (ed), EUV/AEUV. Kommentar, 2nd edn (C.H. Beck, 2011).

Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evolution of the Schengen Acquis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Treaty Guidance under Article 77 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Efficient Border Monitoring (Article 77(1) TFEU) . . . . . . . . . . . . . . . . . . . . . . . 2. Scope of EU Competences (Article 77(2) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . a) Visas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) External Border Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Intra-European Free Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Integrated Border Management System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Absence of Internal Border Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Travel Documents (Article 77(3) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Overarching Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Maintenance of Law and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. External Relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Rights and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. (No) Right to Enter EU Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extraterritorial Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 6 6 7 9 16 18 19 22 24 25 25 28 31 32 38

I. General Remarks 1. Evolution of the Schengen Acquis The political objective of establishing an internal market as an ‘area without internal 1 frontiers’1 supported the abolition of border controls as a ‘constant and concrete reminder to the ordinary citizen that the construction of a real European Community 1

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is far from complete.’2 After initial discussions on the feasibility of supranational lawmaking, the Benelux countries, France and Germany seized the initiative and signed a political commitment on the gradual abolition of checks at their common borders in 1985.3 The latter paved the way for the ‘Schengen Implementing Convention’ of 1990 with detailed rules on the abolition of border controls and corresponding flanking measures.4 The remaining Member States, with the exception of Ireland and the United Kingdom, later acceded to the Schengen Implementing Convention on the basis of international accession treaties during the 1990s.5 On this basis, intra-European border controls were gradually being abandoned: until today, we must distinguish between the applicability of the Schengen acquis and the effective abolition of border controls following an evaluation procedure and a decision to put the common rules into effect.6 EU Member States with the exception of the UK and Ireland had thus signed up to the travel area at the time of the Treaty of Amsterdam which integrated the Schengen acquis into the framework of the European Union. 2 Legally, the incorporated Schengen acquis was (and continues to be) construed as a specific form of enhanced cooperation whose establishment has already been authorised and which comprises all Member States with the exception of the United Kingdom and Ireland7, along with rather complex rules on the association of Denmark and the status of the United Kingdom and Ireland in relation to the new rules (see below MN 5). The Schengen Protocol attached to the Treaty of Amsterdam also contained principles and procedures for the definition of the body of rules that make up the Schengen acquis and the allocation of legal bases in the EU Treaties for all Schengenrelated instruments.8 Insofar as the amendment of former rules are concerned, the Schengen Protocol reaffirmed that all ‘proposals and initiatives … shall be subject to the relevant provisions of the Treaties.’9 Many rules have been replaced in the meantime by new legislative instruments in line with the decision-making procedure applicable, thus illustrating that the Schengen law has become regular European law. The Schengen 2 Commission White Paper, Completing the Internal Market, COM(85) 310, para 47; on the evolution of border control cooperation, see Pastore, Visas, Borders, Immigration, p. 94–98. 3 The Agreement on the Gradual Abolition of Checks at their Common Borders of 14 June 1985 between the Benelux countries, France and Germany was an agreement of political intent to abolish border controls in the future by means of a second treaty. 4 Convention Implementing the Schengen Agreement of 14 June 1985 of 19 June 1990 (OJ 2000 L 293/ 19); on the contents, see O’Keeffe, ‘The Schengen Convention’, Y.E.L. 11 (1991), p. 185–219. 5 Agreements on accession were signed with regard to: Italy on 27 November 1990 (BGBl. = [German] Federal Law Gazette 1993 II 1902), entry into force on 1 July 1997 (BGBl. 1997 II 1530); Spain and Portugal on 25 June 1991 (BGBl. 1993 II 1902), entry into force on 1 March 1994 (BGBl. 1996 II 242); Greece on 6 November 1992 (BGBl. 1996 II 2542) and Austria on 28 April 1995 (BGBl. 1997 II 966), which both entered into force on 1 July 1997 (BGBl. 1998 II 1968); Denmark, Finland and Sweden on 19 December 1996 (OJ 2000 L 239/97), which was never ratified and entered into force as an integral part of the Treaty of Amsterdam (see below MN 2). 6 On gradual implementation, see the Joint Declaration to Article 139(2) Schengen Implementing Convention, ibid.; within the EU framework, corresponding rules were laid down in Article 3(2) Act of Accession 2003 (OJ 2003 L 236/33), Article 4(2) Act of Accession 2005 (OJ 2005 L 157/203) and Article 4(2) Act of Accession 2012 (OJ 2012 L 112/21); border controls were abandoned in 1995, 1997, 1999, 2000, 2007, 2008, and 2013. 7 See Article 1 of the present Protocol (No. 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and the predecessor (OJ 1997 C 340/93); new Member States will participate in the Schengen area in accordance with Article 7 ibid. 8 The integration was performed by Decision 435/99/EC (OJ 1999 L 176/1) and Decision 436/99/EC (ibid. 17); for constitutional implications, see Thym, ‘The Schengen Law’, ELJ 8 (2002), p. 218–245. 9 Article 5 Schengen Protocol, ibid.; for details, see Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047, 1059–1065; and Corrado, ‘L’Inte´gration de Schengen dans l’Union Europe´enne’, Revue du Marche´ Commun 1999, p. 342–349.

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Borders Code Regulation (EC) No 562/2006 and the Visa Code Regulation (EC) No 810/2009, which will be commented upon in this volume, are the most prominent expression of the supranationalised Schengen law. Whereas to many citizens ‘Schengen’ simply means they do not need a passport 3 when crossing borders in continental Europe, the so-called flanking measures compensating national authorities for the loss of control options at domestic borders through pan-European cooperation on issues such as visas, police cooperation, criminal matters and immigration, present the focal point of policy debates. First agreed upon by interior ministers of the five original Schengen participants, these flanking measures soon developed a momentum of their own and constitute, to this day, the backbone of justice and home affairs cooperation in the European Union. This process has been described (and criticised) as ‘securisation’ by some authors, since the agenda of interior ministers dominated early debates,10 although deliberations have become much more balanced in the meantime after the progressive extension of qualified majority voting in the Council and co-decision powers of the European Parliament (see Hailbronner/Thym, Constitutional Framework, MN 3–4).11 While the ECJ originally emphasised the inherent link between the flanking measures and the abolition of internal border controls,12 the Treaty of Lisbon reaffirmed the conceptual autonomy of the area of freedom, security and justice as a policy field in its own right. EU activities are no longer presented as a spillover of the single market, but pursue self-sufficient objectives whose exact demarcation remains the prerogative of the EU legislature (see Hailbronner/Thym, Constitutional Framework, MN 5–9). Conceptually, the move towards an ‘area of freedom, security and justice’ highlights 4 the territorial dimension of the Schengen area and related policies with regard to border controls and visas. Nevertheless, the use of the term ‘area’ does not have a fixed meaning in the EU context: it was used repeatedly for the description of projects, such as the European Economic Area or the European Higher Education Area, whose contours remained uncertain.13 Joint policy measures on border controls can be perceived, nonetheless, to present the federal dimension of the integration project with the European Union assuming some (not: all) state-like features, at least at a symbolic level.14 Judges in Luxembourg moved in this direction semantically when they spoke, in judgments on Union citizenship, of the ‘territory of the Union as a whole’15 or, simply, of the ‘territory of the European Union.’16 It should be noted, though, that the federalising pull of the Schengen acquis remains incomplete: the asymmetric (non-)participation of some 10 See Guiraudon, ‘European Integration and Migration Policy’, JCMSt. 38 (2000), p. 251–271; and Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 289–293. 11 See Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193; and Oosterom-Staples, ‘Has Europeanization Silenced Criticism on Intergovernmental External Border Cooperation?’, in: Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012), p. 95–125. 12 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40 rejecting the direct applicability of Article 26 TFEU. 13 Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551, 556–557 shows that the term ‘area’ was meant originally to avoid the term ‘policy’ at the time of the Treaty of Amsterdam, which in eurospeak may imply a higher density of cooperation (today’s designation as a ‘policy’ was introduced by the Treaty of Lisbon). 14 See Lindahl, ‘Finding a Place for Freedom, Security and Justice’, EL Rev. 29 (2004), p. 461–484. 15 ECJ, McCarthy, C-434/09, EU:C:2011:277, para 66. 16 ECJ, Dereci et al., C-256/11, EU:C:2011:734, para 50; for further reading, see Azoulai, ‘Transfiguring European Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2015), sect. 1, 2 (forthcoming).

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Member States limits the identificatory potential of external border controls;17 instead of federal agencies replacing the Member States, national authorities embark upon various forms of transnational cooperation in justice and home affairs (see below MN 8); and Article 77(4) TFEU reaffirms that border control policies shall not affect the national demarcation of state borders in accordance with international law.18 In the words of the German Constitutional Court: the area of freedom, security and justice ‘reduces territorial sovereignty as an element of the state territory’, although the EU ‘does not have comprehensive territorial authority replacing that of the [Member States].’19

2. Territorial Scope (Member State Participation) 5

Measures on border controls and visas are subject to country-specific opt-outs for the United Kingdom, Ireland and Denmark. The abstract rules guiding these arrangements have been described in the introductory chapter (see Hailbronner/Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall picture is rather complex and it can be difficult to discern in specific scenarios, since the country-specific opt-outs for the United Kingdom, Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one side and those for the United Kingdom and Ireland on the other side. Moreover, the above mentioned countries rely on two different sets of rules: measures building upon the Schengen acquis and other instruments. In practice, the last recitals of most instruments indicate whether the United Kingdom, Ireland and/or Denmark are bound. In order to facilitate orientation, the list of the measures below indicates whether the instruments commented upon in this volume are binding for the United Kingdom, Ireland and/or Denmark and whether they are considered to be building upon the Schengen acquis.20 Instrument

Denmark21

Schengen?22

United Kingdom

Ireland

Schengen Borders Code Regulation (EC) No 562/2006

no

no

no (int. law)

yes

Visa Code Regulation (EC) No 810/2009

no

no

no (int. law)

yes

Frontex Regulation (EC) No 2007/2004

no

no

no (int. law)

yes

17 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu ¨ tze (eds), The Oxford Principles of European Union Law, Vol. I (OUP, 2015), sect. 4.4 (forthcoming). 18 The provision was introduced by the Treaty of Lisbon in line with the debates in the European Convention drafting the Constitutional Treaty in response to the lingering dispute between Spain and the United Kingdom over Gibraltar; see Labayle, ‘L’espace de liberte´, se´curite´ et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit europe´en 41 (2005), p. 437, 453. 19 Federal Constitutional Court (Bundesverfassungsgericht), judgment of 30 June 2009, 2 BvE 2/08 et al., Treaty of Lisbon, BVerfGE 123, 267, para 345 (informal translation of the court). 20 For a list of other instruments, including the measures of the original Schengen acquis integrated into the EU Framework in 1999 (see above MN 2–3), see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos 2004), p. 119–130, available online at http://www.ungleichzeitigkeit.de [last accessed 24 November 2015]. 21 Note that Denmark can bound by measures building upon the Schengen acquis as a matter of public international law, if it declares its intention to do so in line with the rules of the Schengen Protocol described by Hailbronner/Thym, Constitutional Framework, MN 41. 22 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by see ibid.

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Instrument Sea Borders Regulation (EU) No. 656/2014

United Kingdom

Ireland

no

no

Denmark no (int. law)

Schengen? yes

Participation in border control and visa policy instruments commented upon in this volume.

II. Treaty Guidance under Article 77 TFEU Article 77 TFEU 1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning: (a) the common policy on visas and other short-stay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders. 3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament. 4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

1. Efficient Border Monitoring (Article 77(1) TFEU) The newly formulated Treaty objective for entry and border controls in Article 77(1) 6 TFEU emphasises that the EU’s activities are meant to support the ‘efficient monitoring of the crossing of external borders’ (part B) on the basis of ‘an integrated management system’ (part C). In short, ‘efficient’23 and well organised border controls are to be 23 While the English language version employs the process-oriented term ‘efficient’ (not the outcomeoriented word ‘effective’), other language versions, which are equally valid, use the term ‘effective’ or wording that can mean both; cf. the German ‘wirksam’, the French ‘efficace’ or the Spanish ‘eficaz.’

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strived for by the EU legislature, thereby emphasising that border control cooperation is no longer linked to the single market and has become a self-sufficient end in itself as an integral part of the area of freedom, security and justice (see above MN 3). In a similar way as other Treaty objectives, Article 77(1) TFEU is legally binding at an abstract level that does not translate into judiciable standards for the review of EU legislation or national implementing measures in regular circumstances (see Hailbronner/Thym, Constitutional Framework, MN 5–7).24 The twofold instructions for border controls and visas in one article show that the EU Treaty pursues a multilevel entry control concept that comprises activities at the territorial borders in the same way as it encompasses extraterritorial control activities. These include activities on the high seas (see below MN 38–41) and the cooperation with third states in the field of border controls (see below MN 28–30) and visas, which are handed out by the consulates of the Member States in third states as the ‘border abroad.’25

2. Scope of EU Competences (Article 77(2) TFEU) As a shared competence, legislation on entry and border controls must comply, like immigration and asylum policy, with the principles of subsidiarity and proportionality (see Thym, Legal Framework for EU Immigration Policy, MN 9). Although it should be acknowledged, that the Treaty objective of efficient border monitoring on the basis of an integrated management system (see above MN 6) stipulates a certain generosity in the application of the principles of subsidiarity and proportionality. Since most Member States have lost the ability to control their own territorial borders in the Schengen area, the principle of subsidiarity will not usually stand in the way of common action. EU action adds value by doing something that Member States alone cannot any longer achieve effectively. The term ‘measure’ in the introductory part of Article 77(2) TFEU indicates, in line with established EU terminology, that directives, regulations and decisions can be adopted: corresponding measures can provide for legislative harmonisation, enhance transnational administrative cooperation, establish financial support or provide for other activities.26 The broad Treaty objective implies, moreover, that the interpretation of legal bases in Article 79(2) TFEU, which expressly relates to the purposes of paragraph 1, should consider the Treaty objective.27 8 EU legislation on entry and border controls can embrace rules on administrative procedure and judicial protection which supplant, as leges speciales, the principle of national procedural autonomy that applies in the absence of express legislative prescriptions (see Hailbronner/Thym, Constitutional Framework, MN 34–37). Given that entry and border control policies have a tangible procedural dimension, corresponding EU rules are generally permissible, although one should bear in mind that the diversity of national administrative and judicial systems call for a certain flexibility on the side of the Member States in line with the principle of subsidiarity (see above MN 7). In accordance with the EU’s constitutional structure, the supranational level concentrates on legislative harmonisation and administrative support measures, while decisions affecting individuals are usually taken at national level by domestic authorities.28 The 7

24 See also Mu ¨ ller-Graff, ‘Der Raum der Freiheit, der Sicherheit und des Rechts in der Lissabonner Reform’, Europarecht Special Issue No. 1/2009, p. 105, 111–112; and Weiß, Article 77 TFEU para 4. 25 See Thym, Migrationsverwaltungsrecht, p. 335–341; and Guild, ‘The Border Abroad’, in: Groenendijk et al. (eds), In Search, p. 87–104. 26 By way of example, see Regulation (EU) No 515/2014 of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa (OJ 2014 L 150/143). 27 See von Bogdandy/Bast, ‘The Federal Order of Competences’, in: ibid. (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 271, 288; see also Weiß, Article 77 TFEU para 4. 28 See Article 291(1), (2) TFEU; and Articles 4(2), 5(1) TEU.

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move towards a federal administration that applies EU law directly towards individuals requires a foundation in the EU Treaties.29 Whether such basis exists, is to be assessed with regard to specific Treaty articles on the basis of general interpretative criteria,30 which should be subject to strict scrutiny in order to prevent vaguely formulated Treaty provisions from undermining the general constitutional structure of the European Union. The examples of Frontex (see below MN 20) and visa policy (see below MN 11) illustrate that it is possible for Member States to cooperate extensively below the threshold of a federal administration. a) Visas. Certain aspects of visa policy have been subject to a supranational competence 9 ever since Article 100a EC Treaty as amended by the Treaty of Maastricht, which was replaced by more extensive competences on visa issues in the Treaties of Amsterdam and Nice.31 The complexity of previous Treaty provisions entailed a number of intricate questions of legal interpretation most of which have become moot because of the simplification and complementation of EU competences in the Treaty of Lisbon.32 It is inherent in the proviso of a ‘common policy’ on visas that Article 77(2)(a) TFEU allows for a comprehensive policy approach towards short-term residence permits and does not limit itself to the codification of pre-existing competences under the Treaties of Amsterdam and Nice. This entails, more specifically, that nowadays the EU legislature holds an unequivocal competence for the harmonisation of rules on airport transit visas, although the holders of such visas do not usually cross the external Schengen borders for immigration purposes, since they remain within the transit area of international airports.33 Article 77(2)(a) TFEU covers rules on both visa requirements and procedure. The EU 10 legislature benefits from a principled discretion when determining countries whose nationals require a visa for entry into the Schengen zone. Visa requirements can have different rationales that are legitimate from a legal point of view: the legislature can pursue, among other things, strategic foreign policy considerations34 or be guided by migration policy objectives, such as the prevention of illegal migration.35 Moreover, the aim of efficient border monitoring (see above MN 6–7) supports a broad reading of Article 77(2)(a) TFEU which embraces detailed procedural or substantive prescriptions, such as the use of biometric identifiers during visa applications, application fees or security features that can help to prevent abuse. This conclusion extends to the Visa Information System which supports effective transnational cooperation among Member States; additional recourse to Article 74 TFEU may be required only for independent supranational databases reaching beyond the transnational connection among national systems.36 Of course, EU legislation has to comply with human rights (see below MN 31–41), including guarantees for data protection in the European Convention and the EU Charter.37 If access to these databases is granted to Europol or domestic 29 Simply allowing for ‘measures’ will not be enough in light of the constitutional design described above. 30 Cf. Article 2(6) TFEU. 31 See Meloni, Visa Policy, p. 43–120 et seq. und Pastore, Visas, Borders, Immigration, p. 89–107. 32 Today’s Article 77(2)(a) TFEU is the result of a conscious choice, during the European Convention drafting the erstwhile Constitutional Treaty, to simplify and complement existing provisions; see the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002. 33 See Article 3 Visa Code Regulation (EC) No 810/2009; see also, Peers, EU Justice, p. 236; and Weiß, Article 77 TFEU para 19. 34 Cf. Article 21(3) TEU. 35 On the corresponding practice, see Meloni, Visa Policy, p. 100–107. 36 Storage of personal data at EU level may be considered the demarcation line; see also Peers, EU Justice, p. 151; and Bast, Aufenthaltsrecht, p. 157–158. 37 Cf. Brouwer, Digital Borders and Real Rights (Martinus Nijhoff, 2008), p. 127 et seq.; and Heussner, Informationssysteme im Europa¨ischen Verwaltungsverbund (Mohr Siebeck, 2007), p. 190 et seq.

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authorities, Articles 87 or 88 TFEU may be used as a legal basis, not the immigrationrelated provision of Article 77 TFEU. 11 It follows from constitutional considerations (see above MN 8) that national consulates will regularly process visa applications. Nevertheless, Article 77(2)(a) TFEU allows for the adoption of a wide range of different measures through which the EU can support the effective application of common rules or better transnational cooperation among Member States (see above MN 7). The principle of subsidiarity will not usually stand in the way of such measures which contribute to the overall objective of efficient border monitoring (see above MN 6). On this basis, an enhanced degree of practical cooperation can be achieved, for instance through the joint accommodation of consulates from different Member States in a single building, representation arrangements or the so-called local Schengen-cooperation.38 Such enhanced transnational cooperation can achieve widespread practical convergence, but stays short of the threshold of federal EU consulates from a constitutional perspective in which EU officials would decide individual visa applications for the Schengen area as a whole.39 In the absence of any textual indication to the contrary (see above MN 8), it is to be assumed that neither Article 77 TFEU nor the proviso for the External Action Service40 provides a sufficient legal basis for a move in this direction: EU consulates would require a formal Treaty change under Article 48 TFEU. 12 Article 77(2)(a) TFEU does not confine itself, in contrast to previous versions, to visas for intended stays of no more than three months41 employing the open formulation ‘short-stay’ instead. The EU legislature retains a certain flexibility, as a result, to lay down other time limits for the definition of short stays, which could concern, for instance, a period of five months.42 The interpretation of the term ‘short-stay’ should be oriented at the historic example of the Schengen visa for three months, while acknowledging that today’s open formulation grants more flexibility. A period of a few months is therefore covered by Article 77 TFEU with the exact delimitation remaining the prerogative of the legislature. In any case, the general scheme of Treaty rules demonstrate that, read in conjunction, the provisos for ‘short-stay’ permits in Article 77(2)(a) TFEU and ‘long-term’ permits in Article 79(2)(a) TFEU allow for the seamless regulation of immigration statuses (see Thym, Legal Framework for EU Immigration Policy, MN 11). Rules on economic migration, by contrast, are always covered by Article 79 TFEU as lex specialis irrespective of whether admission for purposes of employment concern longer or shorter stays, such as in the case of the Seasonal Workers Directive 2014/36/EU.43 It is generally irrelevant for the delimitation of Articles 77 and 79 TFEU 38

Cf. Articles 8, 37–48 Visa Code Regulation (EC) No. 810/2009. See Thym, Migrationsverwaltungsrecht, p. 347–352; and Laas, Die Entstehung eines europa¨ischen Migrationsverwaltungsraumes (Nomos, 2008), p. 139–144. 40 Article 27(2) TEU contains no indication that joint visa application centres with EU officials acting on behalf of the Member States are covered by the legal basis for the European External Action Service, which, as an integral part of the Common Foreign and Security Policy, must be interpreted in line with Article 40 TEU not to undermine supranational policies, such as immigration and asylum; at present, Decision 2010/ 427/EU (OJ 2010 L 201/30) on the European External Action Service does not cover visas anyway. 41 Cf. Article 63(2) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 42 Similarly, see Weiß, Article 77 TFEU para 7; Peers, EU Justice, p. 236, 172–173; Muzak, Article 77 TFEU para 14; and Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift fu¨r Ausla¨nderrecht 2008, p. 55, 56; before the entry into force of the Lisbon Treaty, the Commission had proposed a six-month definition which caused some legal debates; cf. COM(2001) 388 (repealed in accordance with OJ 2006 C 64/3). 43 This conclusion rests upon the place of the opening clauses in Article 79(5) TFEU and the historic distinction between short-stay Schengen visas for tourists and entries for other purposes, including access to the labour market that resonates with the term ‘immigration’ (see Thym, Legal Framework for EU Immigration Policy, MN 7 and the legal base mentioned in the introductory paragraph of the Seasonal Workers Directive 2014/36/EU); in practice, the distinction has little relevance, since the ordinary 39

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whether a permit is handed out by a consulate in a third state as a ‘visa’ or granted by domestic immigration authorities as a ‘permit.’44 Article 77(2)(a) TFEU concerns abstract rules on visas, including the rejection of an 13 application for reasons of public policy or security (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 3). By contrast, the denial of entry to individuals on foreign policy grounds on the basis of Resolutions of the UN Security Council or autonomous sanctions agreed upon by the EU institutions, does not come within the reach of Article 77 TFEU, since there is a lex specialis for restrictive measures against individuals and third states in Article 215 TFEU and corresponding Treaty rules on the Common Foreign and Security Policy.45 Such foreign policy decisions apply to all Member States, including the United Kingdom, Ireland and Denmark (see above MN 5); they must be respected when applying the Visa Code Regulation or respective national rules in the UK, Ireland or Denmark. It is settled ECJ case law that the EU acquires an exclusive external treaty-making 14 power whenever international treaties may affect common rules or alter their scope.46 Member States cannot conclude any longer, without an express authorisation by the EU legislature,47 international agreements with third states on visa exemptions.48 Existing agreements continue to apply, but can no longer be amended (see Hailbronner/Thym, Constitutional Framework, MN 58). This entails that the occasionally protracted, diplomatic negotiations with third states on reciprocal visa waivers have become an exclusive EU competence for the Schengen area.49 Whenever the negotiations lead towards the joint conclusion of readmission and visa facilitation agreements, Article 79(3) TFEU must be activated as a complementary legal basis (see Thym, Legal Framework for EU Immigration Policy, MN 22–23). The EU institutions retain a principled discretion, like in the case of unilateral visa requirements (see above MN 10), whether and, if yes, under which conditions a visa waiver shall be granted; they can, in particular, insist upon reciprocal exemptions or embrace strategic foreign policy considerations in line with the Common Foreign and Security Policy. In accordance with settled ECJ case law, the demarcation of different legal bases 15 follows the aims and components of the measure in question; whenever there are multiple aims and components, the central elements prevail over incidental aspects if the measure has an identifiable focus.50 This entails that corollary rules on migration in bi- or multilateral trade agreements, such as the General Agreement on Trade in Services (GATS), are covered by the exclusive Union competence for the Common Commercial Policy.51 In the case of the GATS, the Annex on Movement of Natural Persons lays down expressly that it shall not prevent states from applying measures legislative procedure applies to Articles 77 and 79 TFEU; see also Weiß, Article 77 TFEU para 28; Muzak, Article 77 TFEU para 33; and Bast, Aufenthaltsrecht, p. 152–154. 44 Article 77(2)(a) and 79(2)(a) TFEU cover both ‘visas’ and ‘permits;’ both provisions are to be distinguished on the basis of the length of stay. 45 Peers, EU Justice, p. 155 does not really explain why he wants to apply Article 77 TFEU instead. 46 See Article 3(2) TEU; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36–42. 47 Cf. Article 2(1) TFEU. 48 See Martenczuk, ibid., p. 44–45; and Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, CML Rev. 37 (2000), p. 345, 365. 49 On political difficulties, see the contributions to Bigo/Carrera/Guild (eds), Foreigners, Refugees or Minorities? Rethinking People in the Context of Border Controls and Visas (Ashgate, 2013). 50 Cf. ECJ, Commission vs. Council (ECOWAS), C-91/05, EU:C:2008:288, para 73. 51 See Articles 206–207 TFEU; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 48–49.

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regulating the entry and stay of natural persons including visa requirements.52 Similar corollary rules on migration in other agreements on trade or development cooperation53 will be covered by Articles 206–210 TFEU as well, while the move towards legally binding mobility partnerships with extensive rules on visa waivers or related questions would have to be based on Articles 77 and 79 TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 23). By contrast, legislation on the status of service providers from third countries will be covered by Article 78(2)(a) TFEU for short stays or Article 79(2)(a) for longer periods if the legislation concentrates on the immigration status of the persons concerned (not on trade-related rules).54 Whenever international treaties concluded by the EU command visa free access, they have precedence over secondary Union legislation in cases of conflict (see Hailbronner/Thym, Constitutional Framework, MN 56–57). b) External Border Controls. The original Schengen Implementing Convention contained detailed rules on external border controls which, as so-called flanking measures, were meant to compensate states for the loss of control over their internal borders (see above MN 3). An interpretation of the term ‘external border’ in the light of the historic context exhibits that it refers to the Member States participating in the Schengen cooperation (see above MN 5) – not the geographic scope of Union law in accordance with Articles 52 TEU and 355 TFEU.55 This entails that, for the purposes of entry control, the border between France and the United Kingdom has to be qualified as an ‘external border’ with regard to which Article 77(2)(b) TFEU allows for the adoption of common control standards which can mainly be found in the Schengen Borders Code Regulation (EC) No 562/2006. Nothing in the wording of the Treaty provision suggests that border controls should be conducted in the territorial waters nor at the international border only, i. e. they can extend to the contiguous zone or the high seas whenever this is necessary for border control purposes. 17 The EU legislature benefits from a principled discretion when deciding upon the intensity of border control standards. It can prescribe, as it can be the case of visas (see above MN 10), detailed procedural and substantive guidelines, such as security features for passports, that contribute to the overall objective of efficient border monitoring (see above MN 6). Of course, EU rules must comply with human rights in the EU Charter, which apply to domestic control activities in accordance with ECJ case law only when Member States are implementing Union law (see below MN 31).56 Moreover, the EU legislature may decide that border control activities can contribute simultaneously to search and rescue measures on the high seas beyond the territorial borders of the Member States,57 while autonomous search and rescue operations that are not connected to border controls in a wider sense cannot be based upon Article 77(2)(b) TFEU alone.58 More stringent requirements exist for Union citizens and third country 16

52 See OJ 1994 L 336/205; and Charnovitz, ‘Trade Law Norms on International Migration’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 241–255. 53 This was explicitly confirmed by ECJ, Commission vs. Council, C-377/12, EU:C:2014:1903, paras 58–59. 54 Cf. the indication of a possible proposal by COM(2015) 240, p. 15. 55 Similarly, see Muzak, Article 77 TFEU para 38; and Weiß, Article 77 TFEU para 20. 56 Specifically for border controls, see ECJ, Commission vs Spain, C-503/03, EU:C:2006:74; and ECJ, MRAX, C-459/99, EU:C:2002:461. 57 Cf. Articles 3 and 7 Sea Borders Regulation (EU) No. 656/2014 on search and rescue operations during or in the context of border control activities. 58 In practice, search and rescue operations in the Mediterranean or the Black Sea will almost always be sufficiently close to the external EU borders to be covered by Article 77(2)(b) TFEU for as long as search and rescue does not become an end in itself with autonomous personnel and equipment; one may consider to activate Article 352 TFEU for independent search and recue units.

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nationals family members that command precedence over the border control regulations in cases of conflict, since they emanate from the fundamental freedoms enshrined at Treaty level (see Thym, Legal Framework for EU Immigration Policy, MN 31). Differential control requirements for other status groups are permissible for as long as all Union citizens, including British and Irish nationals, are treated equally irrespective of nationality at the external Schengen borders.59 c) Intra-European Free Movement. The original Schengen Agreements and today’s 18 EU immigration policy are defined by a continued asymmetry: despite the abolition of internal border controls, rules on the entry and residence are not fully harmonised; residence permits for third-country nationals are often confined to the territory of one Member State.60 Foreigners residing legally in a Member State do not have, as a result, a generic right to visit other Member States. Article 77(2)(c) TFEU addresses this gap and allows the EU legislature to regulate ‘travel within the Union for a short period.’ Such rules on temporary free travel within the Schengen area complement the common visa policy, which, in contrast to Article 77(2)(c) TFEU, concerns third-country nationals living outside of the Schengen area.61 The corresponding legislation replacing earlier provisions of the Schengen Implementing Convention was adopted a few months after the entry into force of the Treaty of Lisbon, which established an unequivocal legal basis for such measures.62 While Article 77 TFEU covers short-term travel, Article 79 TFEU must be activated for legislation on longer stays in another Member State (see Thym, Legal Framework for EU Immigration Policy, MN 18). d) Integrated Border Management System. It was a deliberate decision to introduce 19 a specific legal basis for the gradual establishment of an integrated border management system in Article 77(2)(d) TFEU complementing rules on standards and procedures for border controls, including corollary search and rescue obligations in the environment of the external borders (see above MN 16–17).63 The introduction of a new Treaty provision reflects the will of the High Contracting Parties to integrate national border control systems;64 it was meant to supplement prior competences in order to allow for the ‘gradual establishment’ of a higher degree of cooperation.65 The open formulation underlines that cooperation is not confined to the external Schengen borders and can embrace, in line with the multilevel control concept (see above MN 6), extraterritorial activities and cooperation with third states (see below MN 30). EU activities on the basis of Article 77(2)(d) TFEU can embrace legislative harmonisation, support for transna59 In accordance with Article 18 TFEU, nationals of the Member States with an opt out (see above MN 5) must be treated equally when entering the Schengen area, i. e. they can use the control line for EU citizens (not: Schengen citizens); see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos, 2004), p. 254–258, available online at http://www.ungleichzeitigkeit.de [last accessed 1 November 2015]. 60 This applies both to residence permits for which no EU harmonisation exists and for rights to reside in accordance with EU immigration directives, since the latter do not embrace a generic right to free movement within the EU; see Thym, Legal Framework for EU Immigration Policy, MN 18. 61 Residence in the UK or Ireland counts as an extra-Schengen residence for the purposes of Article 77 TFEU, while Denmark is bound by the rules as a matter of public international law (see above MN 5); third-country nationals living in the UK or Ireland (not: Denmark) must, therefore, apply for a Schengen visa to visit France, since they are covered by Article 77(2)(a) TFEU, not part C. 62 See Regulation (EU) No. 265/2010 (OJ 2010 L 85/1). 63 By contrast, Article 62(2)(a) EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173) contained only a generic provision for control standards and procedures. 64 Cf. the political debate in the European Convention that led to the new provision summarised in the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002. 65 See Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743, 763.

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tional cooperation, the coordination of public procurement, financial support or other measures with an impact upon border controls (see above MN 7). 20 It is well known that the borders agency Frontex is the most tangible expression of a move towards an integrated border management system. The Frontex Regulation (EC) No 2007/2004 realises many of the instruments mentioned above, including the Rapid Border Intervention Teams (RABITs) when border guards from different Member States collaborate with regard to a specific challenge. It is a common feature of the existing forms of cooperation to be confined to enhanced transnational cooperation (see above MN 8). With the active support of Frontex, national authorities join forces horizontally instead of merging into a federal border service.66 It can moreover be argued that – unlike the provision on visas (see above MN 11) – the ambitious formulation of Article 77(2)(d) TFEU to allow for ‘any measure necessary for the gradual establishment’ of an integrated management system (French: toute mesure ne´cessaire pour l’e´tablissement progressif; German: schrittweise … eingeführt werden soll) establishes a sufficient legal basis for at least certain features of a federal border guard.67 Indeed, abstract visions of a ‘border corps’ were on the table during the drafting process in the European Convention.68 Closer inspection shows, however, that such abstract calls did not necessarily imply the creation of a federal bureaucracy:69 the reference to an ‘integrated border management system’ was widespread in political debates at the time but was used, in essence, to describe the move towards Frontex and RABITs.70 The drafting history demonstrates, therefore, that Article 77(2)(d) TFEU establishes a legal basis for the progressive evolution of the Frontex agency and related instruments that can, also in future, provide for enhanced transnational cooperation short of the move towards a federal EU border guard.71 By contrast, the creation of a truly federal European border guard replacing national authorities would require Treaty change in accordance with Article 48 TEU. 21 In line with the classification of Article 77 TFEU as a shared competence (see above MN 7), the Member States retain the option to cooperate bilaterally in order to support the effective functioning of the multilevel border control system. Protocol (No. 31) on External Relations of the Member States with regard to the Crossing of External Borders mandates, in this respect, that Article 77 TFEU ‘shall be without prejudice to the competences of Member States to negotiate or conclude agreements with third countries…’72 This entails that the EU does not possess, in contrast to other areas (see 66 See Scho ¨ ndorf-Haubold, ‘Europa¨isches Sicherheitsverwaltungsrecht’, in: Terhechte (ed), Verwaltungsrecht der Europa¨ischen Union (Nomos, 2011), § 35 paras 85–97; Thym, Migrationsverwaltungsrecht, p. 347–352; and Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 322. 67 Remember that, in line with general principles (see above MN 8), specific legal bases can provide for a move towards a federal administration replacing, in part at least, domestic authorities. 68 See, again, the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002, p. 17; and the explanation to the initial proposal of today’s Article 77(2)(d) TFEU by the Convention Presidium in doc. CONV 614/03 of 14 March 2003, p. 19. 69 Cf. the synthesis report of the plenary meeting of the European Convention on 3 and 4 April 2003 in doc. CONV 677/03 of 9 April 2003, p. 5–6. 70 Cf. the title and the contents of Commission Communication, COM(2002) 233 as well as the action plan in Council doc. 10019/02 of 13 June 2002, p. 11 et seq.; Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 2008, 379, 385 shows how the political debate at the time influenced the thinking in the European Convention – in a comparable way as in the case of the European Defence Agency, which Article 45 TEU codified in parallel to ongoing political discussions. 71 Similarly, see Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift fu ¨ r Ausla¨nderrecht 2008, p. 55, 56; and Peers, EU Justice, p. 156–157; in contrast to ter Steeg, Einwanderungskonzept, p. 416 et seq.; for a study on different options, see Ryan, Frontex Regulation, Article 1 MN 5. 72 See OJ 2008 C 115/304; protocols are an integral part of primary law in accordance with Article 51 TEU.

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above MN 14), an exclusive competence for agreements concerning border controls with third states; it has the power to conclude such agreements, but cannot prevent Member States from doing the same. In other words, the said Protocol (No. 31) preempts the emergence of an exclusive external Community competence.73 It stipulates, moreover, that agreements of the Member States must ‘respect Community law and other relevant international agreements’, i. e. the Commission could start infringement proceedings whenever they fall foul of EU law, including human rights (see below MN 36). The latter caveat may be particularly relevant in situations where Member States cooperate with third states that serve as transit countries for asylum seekers trying to reach Europe (see below MN 28–30). e) Absence of Internal Border Controls. The abolition of internal border controls 22 was the historic starting point of justice and home affairs cooperation (see above MN 1). Given that Article 26 TFEU does not mandate in itself the abolition of internal border controls,74 today’s Article 77(1)(a) TFEU lays down an original and explicit obligation for border free travel.75 Corresponding rules can be adopted in accordance with Article 77(2)(e) TFEU which serves as a legal basis for the relevant aspects of the Schengen Borders Code Regulation (EC) No 562/2006, including provisions for the phased abolition of border controls towards new Member States after accession (see above MN 1). The term ‘internal border’ should be understood as the counterpart of the ‘external border’ and remains limited, therefore, to borders within the Schengen countries (see above MN 16). The abolition of border controls concerns administrative control procedure only and does not establish a universal right to cross the internal borders, in particular with regard to third-country nationals; rules governing the right of third-country nationals to cross internal borders can be adopted by the EU legislature and, whenever there are no supranational standards, by the Member States on the basis of their residual competences (see above MN 18). It is inherent in the objective to ‘develop a policy’ (Article 77(1) TFEU) on the basis 23 of the ordinary legislative procedure (Article 77(2) TFEU) that the abolition of internal border controls can be subject to certain caveats to be decided upon during the legislative process, in particular the temporary reintroduction of internal border controls. Corresponding rules limiting the discretion of the Member States and establishing a supranational oversight procedure can be found in the Schengen Borders Code (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Articles 23–31) and have been subject to an ECJ judgment limiting the room of manoeuvre for Member States, while confirming, implicitly at least, that rules in EU legislation on the temporary reintroduction of border controls are compatible with Article 77(2)(e) TFEU.76

3. Travel Documents (Article 77(3) TFEU) Article 77(3) TFEU is not directly related to the EU visa policy, since it concerns 24 Union citizens and not third-country nationals. The provision was originally meant to be integrated into the Treaty chapter on Union citizenship, but was referred to the area of freedom, security and justice at a later stage of the drafting process for reasons that are not immediately clear.77 It shall only apply, in line with the express wording, when other 73 Similarly, see Hailbronner, Immigration, p. 65–66; Pastore, Visas, p. 103–104; Muzak, Article 77 TFEU para 6; Peers, EU Justice, p. 222–223; and Weiß, Article 77 TFEU para 25. 74 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40. 75 From a legal perspective, the abolition of the Schengen area would require, therefore, a formal Treaty change under Article 48 TEU. 76 See ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363. 77 Cf. Article III-125(2) Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force; the provision was later referred to the justice and home affairs

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legal bases do not provide for supranational measures. If it is correct that the rules on external border controls can embrace far-reaching prescriptions, such as security features for passport (see above MN 17),78 Article 77(3) TFEU retains a limited scope. It could be activated, for instance, to formalise the existing resolutions of representatives of the Member States’ governments on a uniform pattern for EU passports or on security features for ID cards.79 The special legislative procedure, which requires unanimity among Member States, ensures that Article 77(3) TFEU will not be activated extensively.

III. Overarching Principles 1. Maintenance of Law and Order Article 72 TFEU mandates that the Treaty provisions on the area of freedom, security and justice (not only those immigration and asylum) ‘shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.’ The exact meaning of the proviso is subject to some controversy that can be traced back to the predecessor provisions in the Treaties of Maastricht and Amsterdam,80 while a provision limiting judicial oversight by the ECJ and an additional emergency clause allowing for the adoption of provisional measures by the Council were discontinued by the Treaty of Lisbon.81 26 Some commentators have argued that the caveat in today’s Article 72 TFEU should be construed, in parallel to the public policy exception to the fundamental freedoms,82 as a justification for non-compliance with EU legislation whenever the maintenance of law and order was at stake; the ECJ would be responsible for judicial oversight including a strict proportionality assessment, like in the case of the fundamental freedoms.83 This interpretation is difficult to sustain for a number of reasons (and has not been followed by the practice of the EU institutions so far), although the arguments do not present us with a clear-cut answer and the interpretation of the provision therefore remains subject to some uncertainty: Firstly, the wording of Article 72 TFEU differs from the public policy exceptions to the fundamental freedoms.84 Secondly, the constitutional context differs, since the Treaty provisions on the area of freedom, security and justice are primarily concerned with the division of competences between the Member States and the EU level – not with limits to individual rights in parallel to the fundamental freedoms enshrined at Treaty level.85 Thirdly, the provision does not clearly indicate 25

chapter by the mandate for the Intergovernmental Conference preparing the Treaty of Lisbon in accordance with the annex to Council doc. 11177/07 of 23 June 2007, No. 19(d). 78 Cf. Regulation (EC) No. 2004/2252 (OJ 2004 L 385/1); and Peers, EU Justice, p. 152–154. 79 The Resolution of the representatives of the Governments of the Member States meeting within the Council of 8 June 2004 (OJ 2004 C 245/1) and on security features for ID cards in accordance with Council doc. 15356/06 of 15 November 2006 are not legally binding as a matter of EU law at present. 80 See Article K.2 EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1) and the Amsterdam version of Articles 64(1) and 68(2) EC Treaty (OJ 1997 C 340/173). 81 Cf. the previous Article 64(2) EC Treaty, ibid. 82 See, for the free movement of goods, Article 36 TFEU; and, for workers, Article 45(3) TFEU. 83 See Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006), p.157; ThunHohenstein, Der Vertrag von Amsterdam: die neue Verfassung der EU (Manz, 1997), p. 31; and Weiß, Article 72 TFEU para 2. 84 Article 72 TFEU does not employ the well established term ‘public policy’ in the English language version and speaks instead, rather vaguely, of the ‘maintenance of law and order’, while the French (ordre public) and German (o¨ffentliche Ordnung) language version emulate well-established terminology. 85 See Hailbronner/Thym, Constitutional Framework, MN 15, 20; and Hailbronner, Immigration, p. 100–102, although it should be noted that other Treaty articles, such as Articles 345-347 TFEU contain

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that Member State should be allowed to deviate from EU legislation, although such permission would undermine the effet utile of EU legislation and render more difficult to realise the Treaty objectives. Even if Article 72 TFEU was not interpreted to authorise temporary non-compliance 27 with EU rules, it would not be void of meaning. It could be conceived of not as a freestanding exception to EU legislation but as a reminder that detailed rules in corresponding EU legislation should leave breathing space for Member States when it comes to the maintenance of law and order and the safeguarding of internal security.86 Article 72 TFEU could serve as an interpretative guideline for other Treaty articles and rules in secondary legislation effecting the maintenance of law and order,87 thereby reinforcing the impact of the principles of subsidiarity and proportionality (see above MN 7). In practice, existing EU legislation on immigration and asylum regularly provides for provisions concerning the maintenance of law and order, such as rules in the Schengen Borders Code concerning the temporary reintroduction of internal border controls (see above MN 23) or the rejection of visas or residence permits on public policy grounds (see above MN 13).

2. External Relations In its strategic guidelines for legislative and operational planning in accordance with 28 Article 68 TFEU, the European Council has repeatedly called upon EU institutions to reinforce cooperation with third states. The current Ypres Guidelines by the European Council (see Hailbronner/Thym, Constitutional Framework, MN 8–9) particularly emphasise the relations with third states and stress the relevance of the Global Approach to Migration and Mobility.88 Corresponding external competences for cooperation with third states exist in all areas covered by Articles 77–80 TFEU, since the EU institutions acquire, in line with settled ECJ case law, an exclusive external treaty-making power for international agreements with third states or International Organisations after the adoption of secondary legislation insofar as the international treaties may affect supranational rules or alter their scope (see above MN 14). These implied powers are complemented with an express competence for readmission agreements (see Thym, Legal Framework for EU Immigration Policy, MN 22) and are subject to a minor caveat regarding border controls (see above MN 21). The internal decisionmaking procedure follows Article 218 TFEU that provides for the consent of the European Parliament to agreements immigration and asylum.89 In practice, the European Union has agreed to the far-reaching association of 29 Norway, Iceland and Switzerland (as well as Liechtenstein) with the Schengen acquis, including the abolition of internal border controls.90 This legal construction implies that the participation of these countries in the Schengen law rests upon international overarching exceptions, which are not confined to justifying restrictions to individual rights; see also ECJ, Dory, C-186/01, EU:C:2003:146, para 31. 86 See Hailbronner, Immigration, p. 102 87 In extreme scenarios, it could result in the annulment of legislation leaving no leeway whatsoever to Member States in an area that is crucial for the maintenance of law and order, in particular with regard to judicial and police co-operation in criminal matters to which Article 72 TFEU applies as well. 88 See European Council, doc. EUCO 79/14 of 27 June 2014, para 8. 89 In line with Article 218(6)(a)(v) TFEU, the European Parliament must give its consent whenever the ordinary legislative procedure applies internally, like in the case of Articles 77–79 TFEU. 90 In the case of Norway and Iceland, Protocol (No. 19) on the Schengen acquis (OJ 2008 C 115/290) provides for a specific legal basis that obliges the EU institutions to agree to an agreement; see Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, CML Rev. 37 (2000), p. 345, 350.

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agreements concluded by the EU institutions in recent years,91 not upon EU membership. During the negotiations, the EU institutions insisted upon an obligation of the associated countries to apply any future EU legislation building upon the Schengen acquis, even if it is adopted after the entry into force of the agreement.92 Their ministers cannot participate in the deliberations of new instruments at Council level, although the so-called Mixed Committee provides a forum for an exchange of views.93 Since the association agreements establishes international legal obligations, the reciprocal commitments rest upon international legal obligations and courts from the associated countries cannot refer questions of interpretation to the ECJ, although they are obliged to follow its case law as a matter of principle.94 30 In the future, more specific agreements concerning various aspects of entry and border control policies could be concluded with third states, in particular those in the immediate neighbourhood of the European Union, as instruments supporting the objective for efficient border monitoring.95 In recent years, there have been various examples of international cooperation between EU institutions and the borders agency, mostly below the threshold of legally binding commitments.96 These supranational initiatives are often complemented by bilateral arrangements at national level with neighbouring third states, such as the former, highly controversial former cooperation of Italy with Libya97 or the existing arrangements between Poland and Ukraine.98 At the time of writing, the EU was negotiating with Turkey to enhance bilateral cooperation on border control and asylum issues. Such border control initiatives are often integrated into the wider reorientation of European immigration and asylum policy aiming to make international migration governance more effective, among other things through the conclusion of legally binding readmission and/or visa facilitation agreements (see above MN 14) as well as high-profile initiatives such as mobility partnerships (see Thym, Legal Framework for EU Immigration Policy, MN 60).

IV. Human Rights and International Law 31

EU immigration and asylum law is firmly embedded in the constitutional framework of the EU Treaties, including human rights. From a doctrinal perspective, the rights and 91 See the Agreement concluded by the Council with Norway and Iceland (OJ 1999 L 176/36), which entered into force on 26 June 2000 (OJ 2000 L 149/36); and the Agreement between the EU, the EC and the Swiss Confederation (OJ 2008 L 53/52), which entered into force on 1 March 2008 (OJ 2008 L 53/18) together with the Protocol No. 1 on the accession of Liechtenstein, which entered into force on 19 December 2011 (OJ 2011 L 333/27); for further comments, see Filliez, ‘Schengen/Dublin’, in: Martenczuk/van Thiel (eds), External Relations, p. 145–186. 92 Cf. Article 2(3) of the said agreements, ibid. 93 See Articles 3–7 of the Agreement with Switzerland, ibid., and Articles 3–8 of the Agreement with Norway and Iceland, ibid.; for the institutional practice, see Wichmann, ‘The Participation of the Schengen Associates: Inside or Outside?’, EFA Rev. 11 (2006), p. 87–107. 94 See See Articles 8–9 of the Agreement with Switzerland, ibid., and Articles 10–11 of the Agreement with Norway and Iceland, ibid. 95 On the broader picture, see Thym, ‘Towards International Migration Governance?’, in: Van Vooren et al. (ed), The Legal Dimension of Global Governance: What Role for the EU? (OUP, 2013), p. 289–305. 96 See the contributions to Martin (ed), La gestion des frontie `res exte´rieures de l’Union europe´enne (Pedone, 2011). 97 See Marchetti, ‘Expanded Borders: Policies and Practices of Preventive Refoulement in Italy,’ in: Geiger/Pe´coud (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010), p. 160–183. 98 See Kaca, ‘EU Ukraine Cooperation in Justice and Home Affairs’, in: Snyder/Thym (eds), Europe – A Continent of Immigration? Legal Challenges in the Construction of European Migration Policy (Bruylant, 2011), p. 197–223.

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principles enshrined in the Charter of Fundamental Rights serve as the primary yardstick for the judicial review of EU legislation, both where its validity is at stake or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter in all their activities, the Member States are bound only when implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47– 48). In specific scenarios, the interpretation of the EU Charter by the ECJ typically follows the case law of the ECtHR on the ECHR, although the ECJ is not formally obliged to follow the Strasbourg court (see ibid., MN 51). In contrast to international human rights law and the Geneva Convention, international agreements of the Member States to which the EU has not formally acceded do not form part of the EU legal order as a matter of principle (see ibid., MN 58–59). On the basis of these general principles, this section focuses on the human rights dimension of EU instruments on entry and border controls discussed in this chapter.

1. (No) Right to Enter EU Territory As starting point of its case law, the ECtHR maintains to this date that the 32 contracting states enjoy ‘as a matter of well-established international law and subject to their treaty obligations [the right] to control the entry, residence and expulsion of aliens.’99 This assertion of state sovereignty over the entry and stay of foreigners reflects the classic position of public international law, since human rights have traditionally been conceived as guarantees within existing states and not for transnational movement;100 migration-related questions had originally been left outside the scope of the European Convention deliberately.101 It is not surprising, therefore, that the Strasbourg institutions remained largely silent on migration in the first 30 years of their existence. This has changed significantly ever since the 1990s when judges in Strasbourg started activating Articles 3 and 8 ECHR to limit the traditional notion of state discretion in migratory matters. At an abstract level, we may distinguish two situations: firstly, Article 3 ECHR serves 33 as the central guarantee against mistreatment in the country of origin asking European states to provide shelter (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 57–59); secondly, migrants can bring forward a claim under Article 8 ECHR against European countries they are living in to protect their private or family life without primary consideration of the situation in countries of origin (see Thym, Legal Framework for EU Immigration Law, MN 53–55). In short: refugees are protected against refoulement under Article 3 ECHR, whereas Article 8 ECHR is based upon legitimate ties migrants developed during the period of residence in their European host state. With regard to entry controls at the external border, Article 3 ECHR serves as the central yardstick (see below MN 34–35), since Article 8 ECHR can give rise to the primary right to admission for purposes of family reunion only in exceptional circum99 This standard formula was first used in ECtHR, judgment of 18 February 1991, No. 12313/86, Moustaquim v. Belgium, para. 43; see also Sarole´a, Droits de l’homme et migrations (Bruylant, 2006), p. 331–335. 100 See Hailbronner/Gogolin, ‘Aliens’, in Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, online edition, paras 14–22, available at http://www.mpepil.com [last accessed 24 November 2015]; and Jennings/Watts, Oppenheim’s International Law, Vol. II, 9th edn (OUP, 2008), chs 6 & 9. 101 The travaux pre ´paratoires show that the issue of asylum was discussed but not regulated, also with a view to on-going discussion on the 1951 Refugee Convention, while legal migration was considered to fall within the domaine re´serve´e of state sovereignty, which only carefully drafted international norms – such as Articles 2 and 4 Additional Protocol No. 4 to the ECHR – would selectively limit; see Uibopou, ‘Der Schutz des Flu¨chtlings im Rahmen des Europarats’, Archiv des Vo¨lkerrechts 21 (1983), p. 60, 61–64.

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stances (see Thym, Legal Framework for EU Immigration Law, MN 51). These considerations can be extended to the EU Charter, since Articles 4 and 7 of the latter have to be interpreted in line with the ECtHR case law.102 34 International human rights law confirms the principled freedom of states to control their borders and to regulate the entry and stay of foreigners.103 Only nationals (and possibly certain categories of long-term residents) benefit from a guarantee not to be arbitrarily deprived of the right to enter their ‘own country.’104 Neither treaty obligations nor customary international law have so far brought about an authoritative basis for a generic human right to enter other states or not to be refused entry arbitrarily in situations others than those related to family unity and refugee protection.105 In short: there is no generic right to enter foreign states in international human rights law, while those residing in another country benefit from civil, economic, social and cultural rights.106 Even those with illegal residence status have certain guarantees on their side.107 35 EU legislation can provide for more far-reaching individual rights in situations where human rights do not contain such guarantee. Corresponding statutory rights of migrants to be allowed entry to the EU territory have been recognised by the ECJ in various instances, in particular with regard to uniform visas under the Schengen Visa Code (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 3) and for more specific guarantees for family reunion and for students. In so far as these statutory guarantees go beyond human rights requirements, the demarcation of the precise scope remains the prerogative of the EU legislature whose position judges have to identify under recourse to general interpretative standards for EU immigration and asylum law (see Hailbronner/Thym, Constitutional Framework, MN 15). In accordance with Article 47 of the Charter (see Hailbronner/Thym, ibid., MN 37), EU legislation also provides for a right to appeal against the refusal of entry at the external borders or the rejection of an application for a uniform visa (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 5), although applicants do not have the right to enter the EU territory provisionally pending the outcome of their application (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Article 13 MN 4–5). 36 In relation to refugees, the mandatory respect for the Geneva Convention and human rights (see above MN 31) requires Member States not to violate these obligations when implementing EU policies on border controls and visas. In line with Article 51 of the EU Charter, it has to be assessed on a case-by-case basis whether national border control activities are to be considered an implementation of Union law to which EU fundamental rights standards apply (see Hailbronner/Thym, Constitutional Framework, MN 47–48).108 Express provisions in EU legislation on the necessary respect for refugee 102 On the parallel interpretation of Article 8 ECHR and Article 7 of the Charter, see ECJ, McB., C-400/ 10 PPU, EU:C:2010:582, para 53; correspondingly on Article 3 ECHR and Article 4 of the Charter, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88. 103 In classic international law, only complete closure to the outside world by totalitarian regimes could possibly be classified as being illegitimate; see Meloni, Visa Policy, p. 7–24. 104 Article 12(4) ICCPR, which possibly embraces certain long-term legal residents (but certainly not all foreigners); similarly, Article 3(2) Additional Protocol No. 4 to the ECHR. 105 See Martin, ‘The Authority and Responsibility of States’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 31–46; Perruchoud, ‘State Sovereignty and Freedom of Movement’, in: Opeskin et al. (eds), Foundations of International Migration Law (CUP, 2012), p. 123, 129–136; and the prospective considerations by den Heijer, Extraterritorial Asylum, p. 142–160. 106 See Weissbrodt, The Human Rights of Non-citizens (OUP, 2008); and Ryan/Mantouvalou, ‘The Labour and Social Rights of Migrants in International Law’, in: Rubio-Marı´n (ed), Human Rights, p. 177–211. 107 See Carlier, ‘Quelles Europes et quel(s) droit(s) pour quels migrants irre ´guliers?’, in: Leclerc (ed), Europe(s), droit(s) et migrants irre´guliers (Bruylant, 2012), p. XIII-XXVI. 108 This was ascertained for border controls by ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–41.

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law and human rights, such as Article 3(b) Schengen Borders Code Regulation (EC) No 562/2006,109 confirm that entry and border control policies must be compatible with human rights and refugee law. These human rights guarantees are nowadays considered, by most observers, to include a prohibition, on the side of the states, to not reject those seeking asylum at the border.110 Officials are bound to comply with this obligation (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Article 2 MN 12– 18), which extends unequivocally to control activities at the internationally recognised borders, while the extraterritorial application to border controls on the high seas, in particular, remains disputed (see below MN 40). In the context of refugee protection, it is important to distinguish between non- 37 refoulement obligations and access to the asylum procedure, in particular in situations of extraterritorial state action. While the latter (access to the asylum procedure) implies an obligation, on the part of European states, to assess individual claims to asylum in an individualised procedure for the purpose of residence in the Member States after a positive decision, the former (non-refoulement) concerns the prohibition to return someone to a territory where he may be treated in violation of the Geneva Convention.111 This distinction could be relevant specially for those who are not covered by the EU asylum directives ratione loci, because they come within the jurisdiction of European states during extraterritorial border controls (see below MN 39). As long as non-refoulement obligations are met, these persons could be returned to a third state, or a certain part thereof, provided that they would not be confronted with a well-founded fear of persecution there. Against this background, it would be possible, from a legal perspective, for the EU legislature to establish by means of future legislation the conditions for relocating asylum seekers to a safe country or transit zones on the basis of agreements providing for credible guarantees for fair treatment,112 if necessary by supporting third states or international organisations in guaranteeing an adequate treatment of the returnees through financial or administrative support.113 On this basis, asylum reception centres could be established outside the EU territory but in compliance with the principle of non-refoulement (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 35).

2. Extraterritorial Scope The borders agency FRONTEX has become a symbol for the attempt, on the side of 38 the European Union, to promote the Treaty objective to ensure the ‘efficient monitoring of the crossing of external borders’ (see above MN 6). It participates in extraterritorial activities that critics denounce as an attempt to bypass the obligations under human rights and refugee law by preventing potential refugees from reaching the territorial 109 Even without an express provision respect would be mandatory, since EU legislation has to be interpreted in the light of primary law, see Hailbronner/Thym, Constitutional Framework, MN 14. 110 See Goodwin-Gill/McAdam, Refugee, p. 206–208; and Ka ¨lin/Caroni/Heim, in: Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary (OUP, 2011), Article 33, para. 1 MN 105–109. 111 Explicitly on the distinction between obligations under Article 3 ECHR and subsidiary protection under the Asylum Qualification Directive 2011/95/EU, see ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 39–40. 112 On the relevance of diplomatic assurances within the context of Article 3 ECHR, see Hailbronner/ Thym, Legal Framework for EU Asylum Policy, MN 57. 113 On Australia’s controversial ‘Pacific Solution’, see High Court (of Australia), Judgment of 11 April 2002, Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, paras 42–44 and High Court (of Australia), Judgment of 31 August 2011, Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

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borders of the European Union.114 While it is beyond doubt that extraterritorial border controls must comply with the established principles of the law of the sea concerning safety and rescue of life,115 it remains unclear to what extent human rights and/or refugee law prescribe certain actions. What is certain is that Article 1 ECHR obliges state parties to secure the human rights ‘to everyone within their jurisdiction’ – a condition that is not limited to the state territory as such in accordance with settled ECtHR case law. In a number of judgments concerning extraterritorial military activities, judges in Strasbourg held that ‘in keeping with the essentially territorial notion of jurisdiction’ state activities beyond the territory amount to an exercise of jurisdiction ‘only in exceptional circumstances.’116 These instances can include situations of effective control of an area as a consequence of military action, authority over an individual through estate agents (e. g. kidnapping) or ‘the activities of its diplomatic or consular agents abroad and on board craft and vessels.’117 39 On the basis of the principles above, the ECtHR concluded, in the Hirsi judgment, that Italian border guards held jurisdiction over migrants on board of a coastguard vessel.118 The judgment presents an authoritative basis that the European Convention applies extraterritorially and that migrants on the board of coastguard vessels benefit from the substantive guarantees of under Articles 3 and 13 ECHR (see Hailbronner/ Thym, Legal Framework for EU Asylum Policy, MN 57–60), which in practice will usually require states to allow migrants access to an individualised procedure to analyse whether return would violate Article 3 ECHR.119 It is open to debate if the ECtHR’s statement about migrants on board ships ‘registered in, or flying the flag of, that State’120 entails that other forms of de facto control cannot be qualified as an exercise of jurisdiction in the meaning of Article 1 ECHR, particularly in situations when border control officers are not in physical contact with migrant on coastguard ships.121 It remains the prerogative of the ECtHR to decide whether it follows the arguments put forward in favour of a broad reading of Article 1 ECHR, while considering that decisions may have implications for military action. The ECtHR has thus far been careful not to stretch jurisdiction too widely in this matter.122 40 In the light of the ECtHR case law, a similarly broad extraterritorial reach of the Geneva Convention beyond the obligation not to reject those seeking asylum at the 114 See Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of NonRefoulement’, IJRL 23 (2011), p. 443–457. 115 On corresponding obligations of the Member States, see Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marı´n (ed), Human Rights, p. 212, 225–237; and Beushausen, ‘Vo¨lkerrechtliche Pflichten und Rechte von (EU-)Ku¨stenstaaten gegenu¨ber Migranten auf See’, Zeitschrift fu¨r Ausla¨nderrecht (2010), p. 45–49. 116 Reaffirmed by ECtHR, judgment of 23 February 2012 (GC), No. 27765/09, Hirsi Jamaa et al. v. Italy, para 72 summarising earlier judgments. 117 See, again, the summary of earlier case law by ECtHR, ibid., paras 73–75. 118 See the application of the principles described above by ECtHR, ibid., paras 76–82. 119 For further comments, also on the ECtHR’s traditional recourse to the prohibition of collective expulsions in Article 4 Additional Protocol No. 4 to the ECHR, see den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), 265, 280–285; and Lehnert/Markard, ‘Mittelmeerroulette’, Zeitschrift fu¨r Ausla¨nderrecht (2012), 194, 197–198. 120 ECtHR, ibid., para 75. 121 Many migration law experts favour a broad reading; cf. den Heijer, ibid., p. 273–274; Moreno-Lax, ‘Hirsi Jamaa and Others v Italy’, Human Rights Law Review 12 (2012), 574, 580–582; and Klug/Howe, ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’, in: Ryan/Mitsilegas, Extraterritorial Immigration, p. 69, 96–99. 122 See Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, American Journal of International Law 99 (2005), p. 119–141; and Miller, ‘Revisiting Extraterritorial Jurisdiction’, European Journal of International Law 20 (2009), p. 1223–1246.

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state border (see above MN 36) would have limited practical implications for EU immigration and asylum law, since Article 3 ECHR goes beyond the Geneva Convention both in terms of qualitative criteria for non-refoulement and regarding procedural guarantees (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 55– 60). In the academic literature, there is a growing support – in contrast to the prevailing state practice – for a dynamic reinterpretation of the Geneva Convention to apply extraterritorially in line with human rights law, while state practice is much more reticent.123 It is well established, though, that situations without effective state control over a person or territory cannot be qualified as an exercise of state jurisdiction involving human rights accountability under the European Convention or other instruments.124 This entails that visa requirements and sanctions for transport carriers, which are widespread and often criticised politically,125 cannot be held liable for violations of non-refoulement obligations (see Meloni, Regulation (EC) No 810/2009 Article 1 MN 11). Express provisions on non-refoulement obligations in EU legislation, in particular 41 in the Schengen Borders Code (see above MN 35) and the Sea Borders Regulation (EU) 656/2014, do not in themselves oblige border guards to grant access to EU territory, since they should be understood, in essence, as declaratory confirmations of pre-existing human rights together with corresponding monitoring responsibilities (see Ryan, Regulation (EU) 656/2014 Article 4 MN 3–5).126 In a similar vein, Article 18 of the Charter does not change the overall picture, since its possible interpretations do not go beyond the level of protection guaranteed by the Geneva Convention or Article 3 ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 63). With regard to the EU Charter, it remains unclear, moreover, whether it emulates the jurisdictional threshold of Article 1 ECHR in instances of extraterritorial state action.127 No matter how precisely one defines territorial scope of the EU Charter, it depends on the factual circumstances of the case at hand whether national border control activities can be qualified as an implementation of Union law that entails the applicability of the EU Charter (see Hailbronner/Thym, Constitutional Framework, MN 47–48). If the Charter does not apply, national courts can have recourse to the ECHR and national constitutional guarantees in order to scrutinize state action. 123 See the arguments put forward and the summary of the state practice by Goodwin-Gill/McAdam, Refugee, p. 244–256; Gammeltoft-Hansen, ‘Extraterritorial Migration Control and the Reach of Human Rights’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 113, 116–126; and den Heijer, Extraterritorial Asylum, p. 120–132. 124 See McNamara, ‘Member State Responsibility for Migration Control within Third States – Externalisation Revisited’, EJML 15 (2013), 319, 331–333; for a proposal for progressive reinterpretation of the ECHR, see Spijkerboer, ‘Stretching the Limits’, in: Maes et al., External Dimensions, p. 387, 394–402. 125 Cf. Ryan, ‘Extraterritorial Immigration Control’, in: ibid./Mitsilegas, Extraterritorial Immigration, p. 3–38. 126 Moreno-Lax, ‘(Extraterritorial) Entry Controls and (Extraterritorial) Non-Refoulement in EU Law’, in: Maes et al., External Dimensions, p. 415, 437–440, 474–476 can be misunderstood as implying that a declaratory confirmation of human rights obligations implies a statutory right to access. 127 For a progressive interpretation, see Costello/Moreno-Lax, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1657–1684; more restrictive is Herdegen, ‘Grundrechte der Europa¨ischen Union’, in: Isensee/Kirchhof (ed), Handbuch des Staatsrechts, Vol. X, 3rd edn (C.F. Mu¨ller, 2012), § 211 MN 44–45.

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II. Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) Official Journal L 105, 13/04/2006, p. 1–32, last amended by Official Journal L 295, 06/11/2013, p. 1–10 Selected Bibliography: Boeles/den Heijer/Lodder/Wouters, European Migration Law, Second Edition (Intersentia, 2014), p. 375–380; Brouwer, Digital borders and real rights: effective remedies for thirdcountry nationals in the Schengen information system, Immigration and Asylum Law and Policy in Europe Volume 15 (Brill Nijhoff, 2008); Cholewinski, ‘Borders and Discrimination in the European Union’, in: Anderson/Apap (eds), Police and Justice Co-operation and the New European Borders (Kluwer Law International, 2002), p. 81–102; Cholewinski, ‘No right of entry: The legal regime on crossing the EU external border’, in: Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, Immigration and Asylum Law and Policy in Europe Vol. 5 (Kluwer Law International, 2003), p. 105–130; Cornelisse, ‘What’s wrong with Schengen? Border Disputes and the Nature of Integration in the Area without Internal Borders’, CML Rev 51 (2014) p. 741–770; Guild/Bigo, ‘The Transformation of European Border Controls’, in: Ryan/Mitsilegas (eds), Extraterritorial Migration Control: Legal Challenges, Migration and Asylum Law and Policy in Europe Vol. 21 (Brill Nijhoff, 2010), p. 252–273; Groenendijk, ‘Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom’, ELJ 10 (2004), p. 150–170; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation (Brill Nijhoff, 2008), p. 361–393; Mitsilegas, ‘Border Security in the European Union: Towards Centralised Controls and Maximum Surveillance’, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart Publishing, 2007), p. 359–394; Pascouau, ‘The Schengen Governance Package, The subtle balance between Community method and intergovernmental approach’, European Policy Center Discussion Paper, 12 December 2013; Peers, ‘Key Legislative Developments on Migration in the European Union’, EJML (2006), p. 321–356; Peers, ‘Enhancing Cooperation on Border Controls in the European Union’, in: Cholewinksi/Perruchoud/MacDonald (eds), International Migration Law – Developing Paradigms and Key Challenges (T.C.M. Asser Press, 2007), p. 447–463; Peers, ‘The Future of the Schengen System’, Swedish Institute for European Policy Studies, Report No. 6/2013; Peers/ Guild/Tomkin, EU Immigration and Asylum Law, Text and Commentary, Volume 1: Visas and Border Controls, Immigration and Asylum Policy in Europe Vol. 27, Second Edition (Brill Nijhoff, 2012), p. 33– 96; Wolff/Zapata-Barrero, ‘Border Management: Impacting on the Construction of the EU as a Polity?’, in: Wolff/Goudappel/de Zwaan (eds), Freedom, Security and Justice after Lisbon and Stockholm (T.M.C. Asser Press, 2011), p. 117–134.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 62(1) and (2)(a) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: (1) The adoption of measures under Article 62(1) of the Treaty with a view to ensuring the absence of any controls on persons crossing internal borders forms part of the Union’s objective of establishing an area without internal borders in which the free movement of persons is ensured, as set out in Article 14 of the Treaty. (1) Opinion of the European Parliament of 23 June 2005 (not yet published in the Official Journal) and Council Decision of 21 February 2006.

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(2) In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely is to be flanked by other measures. The common policy on the crossing of external borders, as provided for by Article 62(2) of the Treaty, is such a measure. (3) The adoption of common measures on the crossing of internal borders by persons and border control at external borders should reflect the Schengen acquis incorporated in the European Union framework, and in particular the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders(2) and the Common Manual(3). (4) As regards border control at external borders, the establishment of a ‘common corpus’ of legislation, particularly via consolidation and development of the acquis, is one of the fundamental components of the common policy on the management of the external borders, as defined in the Commission Communication of 7 May 2002 ‘Towards integrated management of the external borders of the Member States of the European Union’. This objective was included in the ‘Plan for the management of the external borders of the Member States of the European Union’, approved by the Council on 13 June 2002 and endorsed by the Seville European Council on 21 and 22 June 2002 and by the Thessaloniki European Council on 19 and 20 June 2003. (5) The definition of common rules on the movement of persons across borders neither calls into question nor affects the rights of free movement enjoyed by Union citizens and members of their families and by third-country nationals and members of their families who, under agreements between the Community and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens. (6) Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations. (7) Border checks should be carried out in such a way as to fully respect human dignity. Border control should be carried out in a professional and respectful manner and be proportionate to the objectives pursued. (8) Border control comprises not only checks on persons at border crossing points and surveillance between these border crossing points, but also an analysis of the risks for internal security and analysis of the threats that may affect the security of external borders. It is therefore necessary to lay down the conditions, criteria and detailed rules governing checks at border crossing points and surveillance. (9) Provision should be made for relaxing checks at external borders in the event of exceptional and unforeseeable circumstances in order to avoid excessive waiting time at borders crossing-points. The systematic stamping of the documents of thirdcountry nationals remains an obligation in the event of border checks being relaxed. Stamping makes it possible to establish, with certainty, the date on which, and where, the border was crossed, without establishing in all cases that all required travel document control measures have been carried out. (2) OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regulation (EC) No 1160/2005 of the European Parliament and of the Council (OJ L 191, 22.7.2005, p. 18). (3) OJ C 313, 16.12.2002, p. 97. Common Manual as last amended by Council Regulation (EC) No 2133/2004 (OJ L 369, 16.12.2004, p. 5).

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(10) In order to reduce the waiting times of persons enjoying the Community right of free movement, separate lanes, indicated by uniform signs in all Member States, should, where circumstances allow, be provided at border crossing points. Separate lanes should be provided in international airports. Where it is deemed appropriate and if local circumstances so allow, Member States should consider installing separate lanes at sea and land border crossing points. (11) Member States should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange. To that end, they should deploy appropriate numbers of staff and resources. (12) Member States should designate the national service or services responsible for border-control tasks in accordance with their national law. Where more than one service is responsible in the same Member State, there should be close and constant cooperation between them. (13) Operational cooperation and assistance between Member States in relation to border control should be managed and coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States established by Regulation (EC) No 2007/2004(4). (14) This Regulation is without prejudice to checks carried out under general police powers and security checks on persons identical to those carried out for domestic flights, to the possibilities for Member States to carry out exceptional checks on baggage in accordance with Council Regulation (EEC) No 3925/91 of 19 December 1991 concerning the elimination of controls and formalities applicable to the cabin and hold baggage of persons taking an intra-Community flight and the baggage of persons making an intra-Community sea crossing(5), and to national law on carrying travel or identity documents or to the requirement that persons notify the authorities of their presence on the territory of the Member State in question. (15) Member States should also have the possibility of temporarily reintroducing border control at internal borders in the event of a serious threat to their public policy or internal security. The conditions and procedures for doing so should be laid down, so as to ensure that any such measure is exceptional and that the principle of proportionality is respected. The scope and duration of any temporary reintroduction of border control at internal borders should be restricted to the bare minimum needed to respond to that threat. (16) In an area where persons may move freely, the reintroduction of border control at internal borders should remain an exception. Border control should not be carried out or formalities imposed solely because such a border is crossed. (17) Provision should be made for a procedure enabling the Commission to adapt certain detailed practical rules governing border control. In such cases, the measures needed to implement this Regulation should be taken pursuant to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6). (18) Provision should also be made for a procedure enabling the Member States to notify the Commission of changes to other detailed practical rules governing border control. (4) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1). (5) OJ L 374, 31.12.1991, p. 4. Regulation as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). (6) OJ L 184, 17.7.1999, p. 23.

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(19) Since the objective of this Regulation, namely the establishment of rules applicable to the movement of persons across borders cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (20) This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. It should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement. (21) By way of derogation from Article 299 of the Treaty, the only territories of France and the Netherlands to which this Regulation applies are those in Europe. It does not affect the specific arrangements applied in Ceuta and Melilla, as defined in the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985(7). (22) In accordance with Articles 1 and 2 of the Protocol on the Position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the date of adoption of this Regulation whether it will implement it in its national law or not. (23) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis(8) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC(9) on certain arrangements for the application of that Agreement. (24) An arrangement has to be made to allow representatives of Iceland and Norway to be associated with the work of committees assisting the Commission in the exercise of its implementing powers. Such an arrangement has been contemplated in the Exchanges of Letters between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning committees which assist the European Commission in the exercise of its executive powers(10), annexed to the abovementioned Agreement. (25) As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which fall within the area referred to in

(7)

OJ L 239, 22.9.2000, p. 69. OJ L 176, 10.7.1999, p. 36. (9) OJ L 176, 10.7.1999, p. 31. (10) OJ L 176, 10.7.1999, p. 53. (8)

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Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decisions 2004/849/EC(11) and 2004/860/EC(12). (26) An arrangement has to be made to allow representatives of Switzerland to be associated with the work of committees assisting the Commission in the exercise of its implementing powers. Such an arrangement has been contemplated in the Exchange of Letters between the Community and Switzerland, annexed to the abovementioned Agreement. (27) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(13). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (28) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(14). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (29) In this Regulation, the first sentence of Article 1, Article 5(4)(a), Title III and the provisions of Title II and the annexes thereto referring to the Schengen Information System (SIS) constitute provisions building on the Schengen acquis or otherwise related to it within the meaning of Article 3(2) of the 2003 Act of Accession, HAVE ADOPTED THIS REGULATION:

TITLE I GENERAL PROVISIONS Article 1 Subject matter and principles This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the European Union. It establishes rules governing border control of persons crossing the external borders of the Member States of the European Union. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction and purpose of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1

(11) Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 368, 15.12.2004, p. 26). (12) Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 370, 17.12.2004, p. 78). (13) OJ L 131, 1.6.2000, p. 43. (14) OJ L 64, 7.3.2002, p. 20.

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2. Territorial scope of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Refugees, asylum-seekers and other persons in need of international protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Judicial protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. Drafting history of Regulation 562/2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. General remarks 1. Introduction and purpose of the Regulation Regulation 562/20061 (Schengen Borders Code, SBC) provides for the absence of 1 border controls at ‘internal borders’2 and establishes common rules and standards to be applied by the Member States when controlling persons crossing the external borders of the Schengen area (Article 1). The aim of external border control is to help combat illegal immigration and trafficking in human beings and to protect the security of the Schengen area.3 Border checks conducted by one Member State at its external borders are executed on behalf of all the other Member (resp. Schengen) States as well since controls at internal borders have to be abolished. They may only be reintroduced exceptionally and temporarily in the event of a serious threat to the public policy or internal security of one or several Member States. In that sense, the provisions on external and internal border controls are interdependent. Regulation 562/2008 entered into force on 13 October 20064 and is a development of 2 the Schengen acquis. It was adopted on the basis of Article 77(2)(b) and (e) TFEU (formerly Article 62(1) and (2)(a) EC Treaty) and combines in a single instrument the existing rules of the acquis on border control which were previously found in the Schengen Implementing Convention (SIC), the Common Manual and a number of decisions of the Schengen Executive Committee. It clarified which of these rules were to be considered legally binding by integrating them into a regulation, and also clarified and further developed selected substantive aspects of the relevant rules on border control (see below MN 24). Regulation 562/2006 is part of the European Union’s policy of external border 3 control and management. Other important instruments in that field include: – The provisions of the SIC on border controls that have not been repealed by Regulation 562/2006 (cf. below MN 20–25); – the Practical Handbook for Border Guards (Schengen Handbook);5 – the regulations and the decision with respect to the establishment and functioning of the European Border Agency ‘FRONTEX’;6 1 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105/1, last amended by OJ 2013 L 295/1. 2 See the legal definition in Article 2(1) Regulation 562/2006. 3 See recital 6 of Regulation 562/2006. 4 Article 34 Regulation 562/2006 which concerns the Member States duties to notify certain facts to the Commission already entered into force on 14 April 2006. 5 Commission Recommendation, COM(2006) 5186 final; amended by Commission Recommendation COM(2008) 2976 final, Commission Recommendation, COM(2009) 7376 final, Commission Recommendation, COM(2010) 5559 final, Commission Recommendatio, COM(2011) 3918 final, and Commission Recommendation, COM(2012) 9330 final. 6 Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004 L 349/1; later amended by Regulation (EC) No. 863/2007 of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Terms, OJ 2007 L 199/30, Regulation (EU) No. 1168/2011 of 25 October 2011, OJ 2011 L 304/1, Regulation (EU) No. 1052/2013 of 22 October 2013

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– The responsibility for the implementation of the rules laid down in Regulation 562/ 2006 lies with the Member States. Nevertheless and in order to coordinate and strengthen cooperation between the Member States, in particular with regard to Title II of Regulation 562/2006,7 a European agency for the management of operational cooperation at the external borders, FRONTEX, was established in 2004.8 FRONTEX has its seat in Warsaw, Poland,9 and became fully operational on 3 October 2005.10 – the rules on local border traffic;11 and – the regime on carrier sanctions.12 4 The control of external borders and especially the combating of illegal immigration is furthermore also one of the most important goals of the European Union’s visa policy.13 These two areas of law, their secondary instruments and in particular the corresponding databases are closely interwoven and should not be considered separately: The Schengen Information System, and in particular Article 96 SIC alerts for the purposes of refusing entry to the Schengen area, is a vital instrument being used during the examination of visa applications. 5 The Visa Information System (hereinafter: VIS)14 which became operational in October 2011 goes beyond the SIS and also stores biometric data and data relating to visa applications that cannot be entered into the SIS for lack of a legal basis. According to Article 2 VIS Regulation, the VIS shall not only facilitate the visa application procedure as such but also facilitate checks at external border crossing points and the fight against fraud. The authorities at the external borders have access to the VIS for the checks that are to be conducted according to Article 5 in conjunction with Article 7 Regulation 562/2006 (Article 18 VIS Regulation).15 6 Harmonized rules and procedural guarantees also apply to third-country nationals who are found to be unlawfully staying in the Schengen area – because they do not or no longer fulfil the criteria for entry into the Schengen area as set out in Article 5 Reg. establishing the European Border Surveillance System (Eurosur), OJ 2013 L 295/11 and Regulation (EU) No. 656/2014 of 15 May 2014 (Sea Borders Regulation). Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Border of the Member States of the European Union, OJ L 114/13 (2005). 7 See Article 16 Regulation 562/2006. 8 See Regulation (EC) No. 2007/2004. 9 See Council Decision 2005/358/EC. 10 See in more detail Peers/Guild/Tomkin, EU Immigraiton and Asylum Law, Vol. 1, p. 119–203; Peers, Justice and Home Affairs Law, 216 et seqq. as well as the commentaries by Ryan on the Frontex Regulation (EC) 2007/2004 and on the Sea Borders Regulation 656/2014, in this volume. 11 Regulation (EC) No. 1931/2006/EC of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, OJ 2006 L 405/1; corrigenda in OJ 2007 L 29/3. For a commentary on this regulation see for example Peers/Guild/Tomkin, p. 205–222 (206–214). 12 Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, OJ 2004 L 61/24. On carrier sanction see for example Moreno Lax, ‘Carrier Sanctions’, in: ‘Peers et al. (eds), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, Vol. 2: EU Immigration Law, Immigration and Asylum Policy in Europe Vol. 27 (Brill Nijhoff, 2012), p. 363–384; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation, p. 369 et seqq.; Rodenha¨user, IJRL 26 (2014), p. 223–247. 13 See above Thym, Legal Framework for Entry and Border Controls, MN 9–15. On the interaction of these areas see also Cholewinski, in Groenendijk/Guild/Minderhoud (eds), p. 105, 127 et seq. 14 Council Decision of 8 June 2004 establishing the Visa Information System (VIS), OJ 2004 L 213/5; Regulation (EC) No. 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation), OJ 2008 L 218/60. 15 See also Regulation (EC) No. 81/2009 of the European Parliament and of the Council of 14 January 2009 amending Regulation (EC) No. 562/2006 as regards the use of the Visa Information System (VIS) under the Schengen Borders Code, OJ 2009 L 35/56.

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562/2006 and do not have any other right for entry, stay or residence in any Schengen state: The Return Directive 2008/115/EC16 obliges the Schengen States to issue a return decision against such individuals. If they do not depart voluntarily, they may be removed. An entry ban for the Schengen area has to be issued, and Member States may decide to register these bans in the SIS.

2. Territorial scope of the Regulation The Schengen Borders Code is fully applicable to all the ‘old’ Member States with the exception of the non-European territories of France and the Netherlands.17 The United Kingdom and Ireland have not opted in to this regulation and it therefore does not apply to these two states. Denmark does in general not participate in the adoption of measures based on Part III Title V TFEU (Article 1, 2 of Protocol No. 22 on the Position of Denmark). According to Article 4 of the protocol, Denmark can, however, decide within a period of six months to implement such measures in national law, which it has done with respect to Regulation 562/2006. Such a decision results in an obligation under international law between Denmark and the other Member States bound by the Schengen acquis (Article 4(1) second sentence Protocol on the Position of Denmark). Despite the fact that Reg. 562/2006 is therefore not directly applicable, and the general rules on judicial protection do also not apply, it is nevertheless expected that the rulings of the European Court of Justice on the interpretation of this regulation will be taken into account by Denmark.18 The ‘new’ Member States have been bound by the entire Schengen acquis and its further developments from the date of their accession to the Union. In order to become ‘full’ Schengen states applying all the Schengen rules (including the ones on the abolition of internal border controls), the Council had resp. has to take a unanimous decision in this regard (Article 2(2) Schengen Protocol).19 Romania, Bulgaria, Cyprus and Croatia are not yet full Schengen States, and even though they already apply the rules on external borders control, controls at internal borders are still being maintained.20 Regulation 562/2006 is applicable to the Spanish exclaves of Ceuta and Melilla only as far as the declaration of Spain in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Schengen Implementation Convention21 does not provide otherwise (Article 36 Regulation 562/2006).22 According to that declaration,23 the con16 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; for an analysis see Lutz/Mananashvili, Return Directive 2008/115/EC, in this volume. 17 Recital 21 of Regulation 562/2006. 18 On the position of Denmark see also above Hailbronner/Thym, Constitutional Framework, MN 40–41. 19 See already the common declaration to Article 139 of the Schengen Implementation Convention. The Council takes such a decision after having evaluated if the requirements for the correct application of the Schengen acquis are met in the Member State in question. Of particular importance are in this regard the correct implementation of external borders control as well as of the accompanying measures, for example in the area of data protection. See on this particularity of the Schengen acquis for example Peers, Justice and Home Affairs Law, p. 88–90. 20 The list of ‘full’ Schengen States is found in the Schengen Handbook (FN 5), Part One, 1, but a consolidated version of the Practical Handbook is not always available for download. See concerning the state of play in the accession to Schengen the Commission’s website at: http://ec.europa.eu/dgs/homeaffairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm [last accessed 20 January 2015]. 21 OJ 2000 L 239/69. 22 See also recital 21, and already Article 138 of the Schengen Implementation Convention. 23 OJ 2000 L 239/73.

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trols between Ceuta and Melilla and the customs area of the European Union are to be maintained, thereby weakening the rules set out in Article 20, 21 Regulation 562/2006 concerning the admissibility of controls at internal borders and within a Member State. As far as this declaration does not provide special rules, Regulation 562/2006 is also applicable to these territories. 11 By reason of their association agreements to the Schengen acquis the non-EUMember States Iceland and Norway24 as well as Switzerland25 and the Principality of Liechtenstein26 are bound by and fully applying the Schengen Borders Code Regulation.

3. Refugees, asylum-seekers and other persons in need of international protection The consequences of strict external border controls can be particularly harsh on persons seeking international protection: Persons fleeing from persecution, from a serious threat to their life or physical and mental integrity or from an armed conflict will typically not fulfil the conditions for entry into the Schengen area27 as they will in a lot of cases not even be in the possession of valid travel documents and even more rarely be able to provide all the required supporting documents. 13 If third-country nationals reach an external border of a Member State, they must be granted the possibility to seek international protection in the European Union and their application must be examined to ensure that they are in no case returned to a country where they are at risk of being persecuted or where their life or freedom is at risk (prohibition of refoulement which is considered a rule of ius cogens).28 Regulation 562/2006 takes these protection obligations into account in several provisions:29 – Recital (20) and Article 3(b) clearly state that the provisions of Regulation 562/2006 should be applied in accordance with protection obligations under international law and without prejudice to the rights of persons seeking international protection. – The imposition of penalties for unauthorised crossing of the external borders in Article 4(3) is without prejudice to Article 31 of the 1951 Geneva Refugee Convention which prohibits such criminal penalties for refugees on the sole account of their illegal entry or presence on the territory of a Schengen state provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence. – Article 5(4)(c) provides for possible derogations from the entry conditions of Article 5(1) among other reasons on grounds of international obligations or for humanitarian reasons. 12

24 Agreement with Iceland and Norway of 17 May 1999 concerning the latters’ association with the implementation, application and development of the Schengen acquis, OJ 1999 L 176/35. 25 Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, OJ 2008 L 53/52. 26 Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, OJ 2011 L 160/39. 27 See below the comments on Article 5 Regulation 562/2006. 28 See in more detail and with further references Epiney/Waldmann/Egbuna-Joss/Oeschger, ‘Maximen und Verfahren im regula¨ren und beschleunigten Asylverfahren’, in: UNHCR/SFH (eds), Schweizer Asylrecht, EU-Standards und internationales Flu¨chtlingsrecht – Eine Vergleichsstudie (Sta¨mpfli, 2009), p. 199–300, 203 et seqq. 29 See also point 10 of Part Two, Section 1 of the Schengen Handbook.

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– Article 6(1) stresses the importance of border guards respecting human dignity in the performance of their duties, in particular when vulnerable persons – e. g. traumatised persons, unaccompanied minors or victims of human trafficking – are involved. – Article 13(1) establishes that the application of special provisions concerning the right to asylum and international protection remain unaffected by the principle that entry should be refused if the entry conditions of Article 5 are not fulfilled. Whereas the Common Manual did not contain much information on the treatment 14 of asylum seekers at the external borders,30 Point 10 of Part Two, Section 1 of the Schengen Handbook states very clearly that all applications for international protection at the border must be assessed, and that any behaviour or expression of fear of the person of suffering serious harm if returned to his or her country of origin must be considered as an application for international protection. The applications must be examined either in special border procedures or regular 15 asylum procedures within the territory. The question is raised if a general right of entry has to be granted to persons seeking international protection, even in case the conditions of Article 5 Regulation 562/2006 are not fulfilled, if the entry is the only way for persons seeking international protection or asylum to ask for that protection according to the relevant European Union rules, especially the Asylum Qualification Directive 2011/95/EU and the Asylum Procedures Directive 2013/32/EU31. As far as the Asylum Qualification Directive 2011/95 is concerned, it only provides for the conditions under which asylum or international protection has to be granted; it does not contain any provision on the question of entry into European Union’s territory. The Asylum Procedures Directive 2013/32 clearly states that its provisions apply to ‘all applications for asylum made in the territory, including at the border or in the transit zones of the Member States’ (Article 3(1) Asylum Procedures Directive 2013/32, emphasis added). According to Article 43 Asylum Procedures Directive 2013/32, Member States are authorized to adopt special provisions applicable to border procedures in accordance with the principles and guarantees set out in Chapter II of Asylum Procedures Directive 2013/32 (Article 43(1)). According to Article 43(2), Member States must ensure that a decision on the application is being taken within four weeks, or otherwise the person must be granted a right of entry into the territory and the application must then be examined in observation of all the procedural standards set out in the Asylum Procedures Directive 2013/32. Article 43(3) provides for an exception to the latter rule in case of a large influx of people. The Member States may then still apply the border procedures, as long as the persons seeking international protection are accommodated in the proximity to the border or transit zone. If persons seeking international protection are intercepted at sea outside of EU 16 territory and therefore not able to reach the external border as defined in Art. 2(2) Regulation 562/2006, Member States might still be bound by international human rights law to grant them at least a provisional right of entry for the purpose of assessing their claim that their return would violate Art. 3 ECHR. The ECtHR has made it clear that persons are to be regarded as being within the ‘jurisdiction’ of a State within the meaning of Art. 1 ECHR and thereby benefitting from the substantive guarantees of the Convention, if that State exercises ‘continuous and exclusive de jure and de facto control’32 over them, irrespective of the fact that this control might be exercised on a 30

See Peers, in Cholewinksi/Perruchoud/MacDonald (eds), Internatinal Migration Law, p. 450 et seqq. Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 L 180/60. 32 ECtHR, Judgment of 23 February 2012, No. 27765/09, Hirsi Jamaa and Others v. Italy [GC], para 81; ECtHR, Judgment of 29 March 2010, No. 3394/03, Medvedyev and Others v. France [GC], para 67. 31

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vessel outside their territory (see Thym, Legal Framework for Entry and Border Controls, MN 38–41)33. 17 The jurisprudence of the ECJ on this issue remains somewhat unclear. In ANAFE34, the Court had to answer the question whether persons who had been issued temporary residence cards while the decision on their application for asylum was pending in one Member State, were allowed to re-enter the Schengen area after they had left the territory of the Member State examining their request. The ECJ held that such persons cannot cross the external borders on the strength of their temporary residence documents alone. The border authorities must refuse them entry (Article 13 Reg. 562/ 2006) unless they are covered by an exception laid down in Article 5(4) Reg. 562/2006. Article 5(4)(c) expressively authorises Member States to grant entry on humanitarian grounds, grounds of national interest or because of international obligations even to a person who does not fulfil all the entry conditions in Article 5. Even though the Court also stressed that the SBC is without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement (Article 3(b) Reg. 562/2006), it did not give a clear answer on the issue whether Member States are allowed to refuse asylum seekers entry at their borders or must grant them a right of entry35. 18 The conclusion must be drawn that neither the provisions of the Schengen Borders Code nor of the Asylum Procedures Directive 2013/32 can be interpreted in the sense of a ‘right of entry’ in order to request international protection. The non-refoulement principle nevertheless demands that national authorities at the external borders – or, under the conditions discussed above, even outside EU territory – must ensure that all applications for international protection are examined, either by sending the person to the Member State responsible for the application according to the criteria set out in the Dublin III Regulation (EU) No 604/201336 or by examining the application themselves during special border procedures or regular procedures within the territory after having granted a right of entry for that purpose. Once the person entered into the territory of a Member State – notwithstanding the exception in Article 43(3) Asylum Procedures Directive –, Article 9(1) Asylum Procedures Directive 2013/32 applies and grants the person a right to remain during the examination of his or her application.

4. Judicial protection Before the Treaty of Lisbon entered into force on 1 December 2009, judicial protection used to be restricted for the areas of law covered by Title IV EC Treaty which of course also included the rules of Regulation 562/2006. According to Article 68(1) EC Treaty, only the highest national courts were bound to request a preliminary ruling of the European Court of Justice if questions on the interpretation or on the validity of European Union acts were raised. Consequently, lower national courts did not have the right or the possibility to request an interpretation of the applicable EU law. 20 Fortunately, the Treaty of Lisbon improved the judicial protection in this area. The Treaty on the Functioning of the European Union (TFEU) does not contain any provision 19

33 On the (possibly) extraterritorial scope of the Schengen Borders Code see in detail den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 165, 193–199. 34 ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41. 35 See Cornelisse, CML Rev 51(2014), p. 766. 36 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, OJ 2013 L 180/31.

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similar to Article 68 EC Treaty and the general rules on the jurisdiction of the ECJ therefore now also apply to Part III Title V TFEU (‘Area of Freedom, Security and Justice’). The exceptions mentioned in Article 276 TFEU do not include the area of border controls.

II. Drafting history of Regulation 562/2006 The abolition of checks at internal borders and the transfer of those checks to the external borders was the main subject and purpose of the Schengen Convention of 1985 (Article 17) and the Schengen Implementation Convention of 1990 (hereinafter: SIC; Title II, Article 2–8). Article 2(1) SIC provided for the abolition of controls at internal borders, whereas Article 2(2) left the possibility of Member States to reinstate border controls for public policy or national security reasons unaffected. The rules on the crossing of the external borders were found in Articles 3–8 SIC. Article 5 SIC being a key provision listed the conditions on which third country nationals could be granted entry into the territories of the participating States. According to Article 6(1) SIC the checks at external borders were to be carried out by the competent national authorities in accordance with their national laws and taking into account certain uniform principles listed in Article 6(2). Article 7 SIC established an obligation of cooperation between the participating States, and Article 8 SIC conferred the power to adopt decisions on the practical aspects of carrying out the border checks unto the Schengen Executive Committee. Making use of these powers, the Executive Committee adopted the Common Manual37 detailing in its Part I the conditions for entering the Schengen area and giving practical guidance for the implementation of Article 3–5 SIC, and in Part II the carrying out of border checks at the external borders and therewith supplementing Article 6–7 SIC.38 In 1999, the Treaty of Amsterdam and the so-called Schengen Protocol attached to it integrated the Schengen acquis on border control into the legal framework of the Community. The Council designated Article 62(1) and (2) EC Treaty as the new legal basis for Article 2–7 SIC, the Decision of the Executive Committee establishing the Common Manual and five more decisions of the Committee.39 The Common Manual was a result of the Schengen intergovernmental cooperation and after the entry into force of the Treaty of Amsterdam, the powers to amend the Manual and its 21 annexes were conferred upon the Council.40 The European Parliament had largely been and continued to be excluded from effective participation in the legislative process in the area of border control. Even after the Common Manual had become part of EU law, it still differed from other EU law in that it did not take the form of any of the instruments provided for by 37 Decision of the Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/COM-ex [99] 13), OJ 2000 L 239/317. The Common Manual was first published in OJ 2002 C 313/97. It was considered a confidential document until the Council took the necessary decisions to declassify it; Council Decision 2000/751/EC, OJ 2000 L 303/29, and Council Decision 2002/535/EC, OJ 2002 L 123/49. 38 See Peers, EJML 2006, p. 324 et seqq. 39 See Peers, EJML 2006, p. 324. 40 Council Regulation 790/2001/EC of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance, OJ 2001 L 116/5. An action for annulment by the Commission was unsuccessful, ECJ, C257/01, EU:C:2005:25.

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Article 288 TFEU (formerly Article 249 EC Treaty), which lead to some ambiguity about its legal effect. The legal uncertainty was further increased by the fact that the Manual was a sort of hybrid between a source of EU law and a practical handbook that sometimes borrowed from or simply reproduced the contents of other sources as for example the Common Consular Instructions.41 25 Discussions about the need to revise the Common Manual started not long after the entry into force of the Treaty of Amsterdam, and it became clear that the Member States favoured the Commission’s proposal to separate the legal instrument from the practical handbook.42 The Commission drafted and released a proposal for a regulation in May 2004.43 With effect from 1 January 2005, the decision-making rules for measures adopted on the basis of Article 62(1) and (2)(a) EC Treaty were amended44 and provided for the application of the co-decision procedure pursuant to Article 251 EC Treaty and qualified majority voting. The Council and the European Parliament reached a final agreement in the first reading in June 2005,45 and the Schengen Borders Code Regulation 562/2006 was formally adopted on 15 March 2006. 26 Regulation 562/2006 entered into force on 13 October 2006 with the exception of Article 34. Article 34 establishes obligations of the Member States to notify certain facts to the Commission and entered into force already on 14 April 2006 (Article 40). With its entry into force, the following provisions and measures were repealed (Art. 39): – art 2–8 SIC; – the Common Manual and its annexes; – the relevant decisions of the Schengen Executive Committee; – Annex 7 of the Common Consular Instructions which was also part of the Common Manual; – the Council Regulation conferring the implementing powers in the area of border control on the Council; – Council Decision 2004/581/EC on signs at external borders; – a Council Decision amending the Common Manual; and – Council Regulation 2133/2004 on the systematic stamping of travel documents of third country nationals. 27 Regulation 562/2006 has since been amended by six regulations: – Regulation 296/200846 amending the existing rules on the implementing powers of the Commission; – Regulation 81/2009 regarding the use of the VIS under the Schengen Code47; – the Visa Code Regulation (EC) No 810/200948; – Regulation 265/2010 concerning the movement of persons with a long-stay visa49;

41

See Commission Proposal, COM(2004) 391 final, p. 6. See COM(2004) 391 final, p. 6 et seqq.; see also Peers, EJML 2006, p. 326 et seqq. 43 COM(2004) 391 final. 44 Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ 2004 L 396/45, Article 1(1). 45 See Peers, EJML 2006, p. 329 for possible reasons for the first-reading agreement. 46 Regulation (EC) No. 296/2008 of the European Parliament and of the Council of 11 March 2008 amending Regulation (EC) No. 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as regards the implementing powers conferred on the Commission, OJ 2008 L 97/60. 47 OJ 2009 L 35/56. 48 OJ 2009 L 243/1. 49 OJ 2010 L 85/1. 42

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– Regulation 610/201350 which introduced a number of amendments and clarifications which had become necessary through several years of practical experience, the adoption of the Visa Code Regulation and the ECJ’s jurisprudence; this regulation also brought Reg. 562/2006 in alignment with Article 290 TFEU and delegated the power to adopt additional measures concerning border surveillance and the amendments of the annexes to the Commission; and – Regulation 1015/201351 providing for more detailed rules on the temporary reintroduction of border control at internal borders in exceptional circumstances as well as a new evaluation mechanism. As mentioned above, one of the goals when drafting what later became Regulation 28 562/2006 was to separate the provisions of the Common Manual that were legally binding from the ones that were not. The practical guidance for border guards when implementing the provision of Regulation 562/2006 was then compiled in the so-called ‘Schengen Handbook’52 with a view to ensuring an effective and harmonized implementation of the common rules on border control. The provisions of the Schengen Handbook are recommendations and not legally binding.

Article 2 Definitions For the purposes of this Regulation the following definitions shall apply: 1. ‘internal borders’ means: (a) the common land borders, including river and lake borders, of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular internal ferry connections; 2. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; 3. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country; 4. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States and consisting of the transport of passengers and vehicles according to a published timetable; 5. ‘persons enjoying the right of free movement under Union law’ means: (a) Union citizens within the meaning of Article 20(1) of the Treaty, and thirdcountry nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States(15) applies; (b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one 50

OJ 2013 L 182/1. OJ 2013 L 295/1. 52 See above MN 5. (15) OJ L 158, 30.4.2004, p. 77. 51

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hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens; 6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) of the Treaty and who is not covered by point 5 of this Article; 7. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Article 96 of the Schengen Convention; 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 8a. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement; 9. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; 10. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it; 11. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks; 12. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line); 13. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks; 14. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 15. ‘residence permit’ means: (a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(16) and residence cards issued in accordance with Directive 2004/38/EC; (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory, that have been the subject of a notification and subsequent publication in accordance with Article 34, with the exception of: (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum and (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas(17); (16) (17)

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OJ L 157, 15.6.2002, p. 1. OJ L 164, 14.7.1995, p. 1.

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16. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage; 17. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 18. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country; 18a. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States as defined by international maritime law, and who returns regularly by sea or air to the territory of the Member States; 19. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Internal borders (Article 2(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. General remarks The definitions in Article 2 are of great significance for the correct interpretation of 1 the other provisions of the Regulation. Whereas most of the definitions in Article 2 are self-explanatory, some are worth discussing and will be analysed in greater detail below.

II. Internal borders (Article 2(1)) Article 2(1) defines ‘internal borders’ as the common borders between Member 2 States, thereby in principle also including the borders between the Schengen States and Great Britain and Ireland that are not bound by this regulation.53 As a logical consequence of not being bound by this piece of legislation, Article 20 Regulation 562/ 2006 (which provides for the absence of controls at internal borders) does as a matter of course also not apply to these states. In addition, Protocol (No. 20) on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland (1997)54 entitles the United Kingdom and Ireland to maintain controls at their borders to other Member States. Said protocol thereby modifies the legal scope of Article 26 TFEU55 with respect to the United Kingdom and Ireland. Furthermore, the Schengen acquis has been extended to some Non-member States 3 (Norway, Iceland, Switzerland and Liechtenstein), so that border controls are also 53

See above Article 1 MN 7. OJ 2006 C 321 E/196. 55 According to the jurisprudence of the ECJ, Article 26 TFEU is, however, not directly applicable as far as the elimination of border controls is concerned. The latter could only be achieved through the adoption of corresponding harmonisation measures, see ECJ, Wijsenbeek, C-378/97, EU:C:1999:439. See on the significance of this ruling in the present context Peers, Justice and Home Affairs, p. 156, 158. 54

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abolished at the borders to these countries. Therefore, the notion of ‘internal borders’ should be understood as to also include borders between the participating EU-Member States and the Non-EU Member States Norway, Iceland, Switzerland and Liechtenstein that are applying the Schengen acquis on the basis of association agreements.

III. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) Article 2(5),(6) define the notions of ‘persons enjoying the right of free movement under Union law’ and ‘third-country national’. It is remarkable that the latter notion is defined more narrowly than the notion of ‘alien’ in Article 1 SIC, excluding all EU citizen and their family members (whatever their nationality) enjoying the right of free movement as well as any other person and their family members enjoying an equivalent right of free movement based on bilateral agreements as for example the EEC Agreement or the Agreement on the free movement of persons concluded with Switzerland.56 5 The question under what conditions it can be presumed that a bilateral agreement grants rights that are equivalent to the free movement rights of EU citizen and their family members can be difficult to answer. A decisive factor should be whether the agreement grants rights that are similarly defined to the same categories of persons as the EU, including to persons not exercising any economic activity in particular. 6 The question if a person is to be considered a third-country national is of some importance since Regulation 562/2006 provides in different articles for less favourable rules as far as third-country nationals are concerned, in comparison with persons enjoying the right of free movement laid down in EU law (for example in Article 5 in relation to the entry). 7 The larger definition of ‘aliens’ according to Article 1 SIC remains pertinent for the provisions of the SIC that are not repealed by Reg. 562/2006.57 According to Article 134 SIC, the SIC is, however, only applicable as far as it is in conformity with EU law, so that the exercise of the right of free movement pursuant to EU law may in no way be impeded by the provisions of the SIC that have not been repealed. 4

Article 3 Scope This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: (a) the rights of persons enjoying the right of free movement under Union law; (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The rights of persons enjoying the right of free movement (Article 3(a)) III. The rights of refugees and persons requesting international protection (Article 3(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5

56 Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, OJ 2002 L 114/6. 57 As for example Article 22 SIC concerning the obligation of aliens to register with the authorities. According to Article 39(1), Regulation No. 562/2006 does only repeal Articles 2–8 SIC.

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I. General remarks Article 3 leaves explicitly the rights of persons enjoying the right of free movement 1 and of persons seeking international protection unaffected.

II. The rights of persons enjoying the right of free movement (Article 3(a)) Article 3(a) states in no uncertain terms that the application of this regulation must 2 not impede the exercise of the right of free movement, which is of particular importance to third-country nationals wanting to cross the external borders of the Union: If they are entitled to free movement as a family member of a Union citizen, they must be granted entry even if they do not meet all the requirements of Article 5. The European Court of Justice ruled in MRAX58 in favour of a right of entry for a 3 third-country national married to a Union citizen solely on the ground of the existing family relationship which could be proved. According to the Court, the right of entry is to be granted even if the person concerned is not in possession of a visa, a passport or a valid travel document, but can prove his identity and the existence of his marriage in another manner, provided that he does not constitute a threat to public order and security. Further, such a third-country national is not to be expelled from the territory solely on the grounds of his illegal entry. In case C-503/0359, the Court declared that a third-county national married to a Union citizen was not to be denied entry solely on the ground that there was an alert for refusal of his entry in the SIS according to Article 96 SIC. In such a case, the ‘automatic’ refusal of entry according to Article 5 and 15 SIC in cases of an existing alert would not be in compliance with the requirements of EU law which took precedence over the SIC according to Article 134 SIC. EU law would require the authorities to examine in each individual case if the individual behaviour of the person concerned constituted a risk to public order and security. Considering the clear wording of Article 3(a), it is to be assumed that the conclusions 4 drawn from this jurisprudence are also applicable and pertinent on the basis of the Schengen Borders Code Regulation 562/2006, which is of particular importance against the background that the requirements for an alert for the refusal of entry of a third-country national in general are much lower than for a refusal of entry of thirdcountry family member of a Union citizen exercising his or her right of free movement.60 In this context, it should further be recalled that pursuant to the findings of the ECJ in the Metock case61 the right of stay of third-country nationals that are family members of a Union citizen is not (or no longer)62 dependent on a previous legal sojourn in the EU territory.63

58

ECJ, MRAX, C-459/99, EU:C:2002:461. ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. See also Eicke, ‘Paradise Lost? Exclusion and Expulsion from the EU’, in Groenendijk/Guild/ Minderhoud (eds), p. 160 et seqq. 61 ECJ, Metock, C-127/08, EU:C:2008:449. 62 See the previous different findings in the Court’s judgment in the Akrich case, ECJ, Akrich, C-109/ 01, EU:C:2003:491. 63 See the detailed analysis of the Metock judgment and its embedding in the previous jurisprudence of the Court in Epiney, ‘Von Akrich u¨ber Jia bis Metock: zur Anwendbarkeit der gemeinschaftlichen Regeln u¨ber den Familiennachzug – Gleichzeitig eine Anmerkung zu EuGH, Rs. C-127/08 (Metock), Urt. v. 25.7.2008’, Zeitschrift Europarecht 2008, p. 840–858. 59 60

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III. The rights of refugees and persons requesting international protection (Article 3(b)) 5

According to Article 3(b) the rights of refugees and persons requesting international protection remain unaffected by this regulation. Under certain conditions, such persons must be granted a right of entry in order for their applications to be examined.64

Article 3a Fundamental Rights When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’); relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis. Art. 3a contains an express safeguard clause for the protection of fundamental rights and was introduced into the Schengen Borders Code in 2013. It calls upon the Members States to fully respect their obligations flowing from the EU Charter of Fundament Rights, the Geneva Refugee Convention and other relevant international law – in particular the international human rights treaties and the ECHR –, and stresses the importance of the principle of non-refoulement65. 2 With the entry into force of the Lisbon Treaty on 1 December 2009, the EU Charter of Fundamental Rights became legally binding. Of particular relevance in the framework of border control are Article 1 (Human Dignity)66, Article 4 (Prohibition of Torture), Article 18 (Right to Asylum), Article 19 (Prohibition of Refoulement) as well as the guarantee to an effective remedy in Article 47. 3 The ECJ considers provisions of Reg. 562/2006 that might significantly interfere with the fundamental rights of the persons concerned as ‘essential elements’ and requires the involvement of the Union legislature in their amendment67. 1

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See the detailed comments on Article 1 MN 12–17. On the protection of the rights of persons seeking international protections see above Article 1, MN 12–18. 66 See ECJ, Zakira, C-23/12, EU:C:2013:24. 67 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516, paras 76–77. 65

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TITLE II EXTERNAL BORDERS CHAPTER I Crossing of external borders and conditions for entry Article 4 Crossing of external borders 1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. Member States shall notify the list of their border crossing points to the Commission in accordance with Article 34. 2. By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed: (a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 34; (b) for individuals or groups of persons in the event of an unforeseen emergency situation; (c) in accordance with the specific rules set out in Articles 18 and 19 in conjunction with Annexes VI and VII. 3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. These penalties shall be effective, proportionate and dissuasive. Content I. General principles on the crossing of external borders (Article 4(1)) . . . . II. Possible derogations (Article 4(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Penalties for the illegal crossing of external borders (Article 4(3)). . . . . . . .

1 3 5

I. General principles on the crossing of external borders (Article 4(1)) Title II (Article 4–19a) regulates the controls at external borders. 1 Article 4 establishes that external borders may only be crossed at the designated 2 border crossing points and during the fixed opening hours (Article 4(1)). This article replaces Article 3 SIC and points 1.2 and 1.3 of part I of the Common Manual. According to Article 34(1)(b) Regulation 562/2006, Member States have to notify their border crossing points to the Commission, the updates are then published in the Epiney/Egbuna-Joss

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Official Journal.68 The competent national authorities have to carry out border surveillance pursuant to Article 12 in order to prevent unauthorised border crossings.

II. Possible derogations (Article 4(2)) Article 4(2) provides for derogations from Article 4(1) in the event of an unforeseen emergency situation (lit. b) and for certain categories of borders and persons (e. g. Heads of State, pilots, seamen, offshore workers) that are subject to the specific rules set out in Annexes VI and VII (lit. c). Derogations to para. 1 are also permitted where there is a ‘requirement of a special nature’ for the occasional crossing of external borders outside border crossing points or outside fixed opening hours (lit. a). Although this exception has been amended by Reg. 610/2013 in an attempt to clarify it, its exact meaning still remains rather obscure. It seems to be sufficient that there is a ‘requirement of a special nature’ without providing further guidance on what kind of requirements are to be considered to be of such nature. No extraordinary situation of any kind is required, leaving a large margin of discretion to the Member States that is only limited in that the persons must hold the required permits and that the public order and internal security of the other Member States may not be threatened (which are once again indeterminate legal concepts that need to be further clarified). One could think of touristic activities as a possible example for the application of Article 4(2)(c). In situations that fall under Article 4(2)(a),(b), Member States are also allowed to provide for derogations from the rules set out in Article 7 (border checks on persons) (Article 7(8) Reg. 562/2006). 4 It should further be noted in this context that this provision (and as a matter of fact all provisions of Regulation 562/2006) is without prejudice to the rights of holder of local border traffic cards under Regulation 1931/2006 on local border traffic at the external borders69 and/or under bilateral agreements.70 According to Article 15(1) Regulation 1931/2006 the bilateral agreements concluded for the implementation of the local border traffic regime may provide for an easing of the border crossing in derogation of Article 4(1) Regulation 562/2006. 3

III. Penalties for the illegal crossing of external borders (Article 4(3)) 5

Article 4(3) takes over Article 3(2) SIC and concerns the introduction of penalties for violations of Article 4(1). Article 4(3) is without prejudice to Article 31 of the Geneva Convention on the status of refugees of 21 June 1951 which prohibits the imposing of criminal sanctions solely on account of the illegal entry or presence of a refugee in the sense of Article 1 of the Convention, as long as the persons comes directly from a country where he was at a risk of being persecuted and presents himself without delay to the authorities and gives good reasons for his illegal entry or presence.71 68 The notifications can also be accessed on the website of the Directorate-General for Migration and Home Affairs http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015]. 69 Regulation (EC) No. 1931/2006 of 20 December 2006 laying down rules on local border traffic at the external borders of the Member States and amending the provisions of the Schengen Convention; OJ 2006 L 405/1; Corrigendum, OJ 2007 L 29/3. 70 Article 35 Regulation 562/2006, at 3.4 of Part Two, Section 1 of the Schengen Handbook. 71 For a detailed commentary on Article 31 Geneva Refugee Convention see for example Hathaway, The Rights of Refugees under International Law (CUP, 2005), p. 370–439. See also the comments on refugees, asylum seekers and persons in need of international protection above Article 1 MN 12–18.

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Art. 5

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Article 5 Entry conditions for third-country nationals 1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years; (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement(18), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. 1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States. 2. A non-exhaustive list of supporting documents which the border guard may request from the third-country national in order to verify the fulfilment of the conditions set out in paragraph 1, point c, is included in Annex I. 3. Means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed. Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 34. The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third(18)

OJ L 81, 21.3.2001, p. 1.

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country national is staying with a host, may also constitute evidence of sufficient means of subsistence. 4. By way of derogation from paragraph 1: (a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit; (b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)(19). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(20), shall be used; (c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Individual right of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Conditions of entry into the Schengen area (Article 5(1)). . . . . . . . . . . . . . . . . 1. Possession of valid travel documents (Article 5(1)(a)) . . . . . . . . . . . . . . . . . . 2. Possession of a valid visa if required pursuant to Regulation 539/2001 (Article 5(1)(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Justified purpose of stay and sufficient means of subsistence (Article 5(1)(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. No Article 96 SIC alert in the SIS for the purpose of refusing entry (Article 5(1)(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. No threat to public policy, internal security, public health or international relations (Article 5(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Derogations from the conditions of entry (Article 5(4)) . . . . . . . . . . . . . . . . . . . 1. Right of transit when in possession of a residence permit or a longstay visa (Article 5(4)(a)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Issue of visa at the border (Article 5(4)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 5(4)(c)) . . . . . . . . . . . . . . . . . . . . (19) (20)

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OJ L 243, 15.9.2009, p. 1. OJ L 53, 23.2.2002, p. 4.

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Art. 5

Part B II

I. General remarks Article 5 lists the conditions of entry for third-country nationals and certain 1 derogations thereof. This article is one of the key provisions of Regulation 562/2006 and sets out the conditions of entry into the Schengen area for stays not exceeding three months per six-month period. Further guidance for the application of Article 5 found in point 1.1 of Part Two, Section 1 of the Schengen Handbook. Article 5 replaces Article 5 SIC and points 2 to 4 of Part 1 of the Common Manual.

II. Individual right of entry Whereas Article 5 SIC stipulated that aliens ‘may be granted entry’ if the conditions mentioned were fulfilled, Article 5 Regulation 562/2006 is worded differently and states that ‘the entry conditions for third-country nationals shall be the following’. The change of wording in Article 5 was made at the behest of the European Parliament and the question has to be raised if Article 5 Regulation 562/2006 stipulates an individual right of entry into the Schengen area also for third-country nationals within the meaning of Article 2(6) Regulation 562/2006 if these persons fulfil all the conditions listed.72 In this respect, Article 5 needs to be considered in conjunction with Article 13 Regulation 562/2006 according to which entry shall be refused if a third-country national does not fulfil the conditions of Article 5. In deciding if the conditions are actually fulfilled, the national authorities will have a certain margin of discretion. Nevertheless is it clear that their discretion is not unlimited: Article 13(2) Regulation 562/2006 states that a refusal of entry needs to be substantiated and authorities are bound to use the standard form in Annex V containing an exhaustive list of reasons for refusal that is corresponding to the entry conditions set out in Article 5(1). Persons refused entry shall have the right to appeal (Article 13(3) Regulation 562/2006). The explicit possibility to appeal the refusal decision speaks clearly in favour of the conclusion that Article 5 does grant individual rights and if the conditions of this provision are fulfilled, third-country nationals have an individual right of entry. In addition, the European Court of Justice has ruled that EU law provisions are granting individual rights if the provisions in question also aim at the protection of the interest of the individual, irrespective of whether the actual wording of the provision states (only) a corresponding obligation of the Member States. It is obvious that the entry into the Schengen area is of (sometimes great) importance for the individual, and therefore Article 5(1) should be interpreted as granting an individual right of entry if the conditions mentioned in this provisions are fulfilled. It should, however, not be forgotten that no ‘right’ to be issued a visa can be deduced from Visa Code Regulation (EC) No 810/2009 so that in conclusion, the decision to let a person enter the Schengen area remains – at least with respect to persons who need a visa – at the discretion of the Member States73. Furthermore, the indeterminate legal notions used in Article 5 further give the national authorities a certain margin of appreciation, even if – as argued – a right to entry has to be admitted. 72

Peers, EJML 2006, p. 332. Although the Visa Code Regulation also limits the possible grounds for refusal of a visa, the ECJ stressed that the competent authorities of a Member States still have ‘a wide discretion in the examination of that application so far as concerns the conditions for the application of those provisions and the assessment of the relevant facts, with a view to ascertaining whether one of those grounds for refusal can be applied to the applicant’ [emphasis added], ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 63; see Meloni, Visa Code Regulation (EC) No 810/2009, Art. 20–21, MN 1. 73

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III. Conditions of entry into the Schengen area (Article 5(1)) 6

Article 5(1) lists five conditions of entry into the Schengen area for stays of up to three months in a six month period74.

1. Possession of valid travel documents (Article 5(1)(a)) 7

What documents are accepted as valid travel documents by the individual Member States can be found in Decisions (98) 56 and (99) 14 of the Schengen Executive Committee.75 Generally speaking most of the Member States accept ordinary passports, diplomatic passports, service passports and travel documents for refugees as valid travel documents in the sense of Article 5(1)(a). According to Article 7(3)(a)(i),(ii) Regulation 562/2006 border guards shall examine whether this condition is fulfilled by verifying that the travel document is not expired and does not bear signs of falsification or counterfeiting. The validity of the documents must in general extend at least three months after the planned date of departure from the Schengen area and the documents must not be older than ten years (Article 5(1)(a)(i), (ii).

2. Possession of a valid visa if required pursuant to Regulation 539/2001 (Article 5(1)(b)) The identity of the person and the authenticity of the visa must in general be verified by consulting the VIS unless one of the grounds of derogation from this rule apply (Article 7 (3)(aa), (ab) Regulation 562/2006). 9 If the third-country national does not need a visa pursuant to Regulation 539/2001, border guards have to examine the entry and exit stamps in his or her travel document in order to verify that he or she has not already exceeded the maximum duration of stay of three months per six-month period (Article 7(3)(iii) Regulation 562/2006). 10 Article 5(1)(b) provides for an exception from the visa requirement according to the EU visa list if the third-country national is in possession of a valid residence permit of a Schengen state or valid long-stay visa. A valid residence permit76 can either be a permit issued on the basis of EU law (as for example the Family Reunification Directive 2003/ 86,77 or the Long Term Residents’ Directive 2003/109)78 or any other document issued by a Member State pursuant to national law authorizing a stay in its territory with the exception of temporary permits that were issued pending the examination of an application for asylum or residence79. A list of the national residence permits has to be notified to the Commission pursuant to Article 34(1)80. 8

74 How to calculate the maximum possible stay in a six-month period was clarified in ECJ, Bot, C-241/ 05, EU:C:2006:634 and introduced in the Schengen Borders Code by Reg. 610/2013, OJ 2013 L 182/1. 75 The lists have since been updated in accordance with Regulation (EC) No. 789/2001. 76 See the definition in Article 2(15) that refers to Regulation 1030/2002 laying down a uniform format for residence permits for third-country nationals, OJ L 157/1 (2002). 77 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L251/12 (2003). 78 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44 (2004). 79 See Article 2(15)(b)(i) and also ECJ, ANAFE, C-606/10, EU:C:2012:348, para 39–41. 80 The notifications can be accessed on the website of the Directorate-General for Migration and Home Affairs at http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015].

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 5

Part B II

3. Justified purpose of stay and sufficient means of subsistence (Article 5(1)(c)) Article 5(1)(c) is to be read in conjunction with Article 5(2),(3) in conjunction with Annex I and Article 7(3)(iv),(v) Regulation 562/2006. Whether the conditions of Article 5(1)(c) are fulfilled or not is to be verified by requesting supporting documents, a non-exhaustive list of which is found in Annex I. What constitute sufficient means of subsistence is to be assessed in reference to the purpose and the duration of stay (Article 5(3) subpara. 1). The Member States have to notify their reference amounts to the Commission (Article 5(3) subpara. 2, Article 34(1)81: Some Member States have set the reference amount in relation to their national subsistence minimum, others have set out a specific amount or formula while yet others have only notified their guidelines for assessment. A majority of states considers around 50–70 E per day to be sufficient, some states request, however, proof of higher financial resources. Certain states have also notified special rules for students or visitors staying with friends or family. The third-country nationals need to proof by means of cash, travellers’ cheques and credit cards in their possession that they have the required amounts at their disposal. If provided for in national law, sponsorship declarations and letters of guarantee are also accepted (Article 5(3) subpara. 3 Regulation 562/2006). By and large, it is to be welcomed that the criteria for the assessment of sufficient means have been stated more precisely than in Article 5 SIC and that the discretion of the authorities in assessing the means has been further limited. The specifications in Article 5(3) Regulation 562/2006 do nevertheless also not guarantee a uniform application of this criterion since the required amounts may vary considerably between the Member States as shown above. It is surprising that pursuant to Article 5(1)(c) Regulation 562/2006 third-country nationals still have to justify the purpose and circumstances of their stay: If a stay is in principle permissible independent of its purpose – as seems to be suggested by Article 5(1) Regulation 562/2006 – and if there is an actual right of entry if the requirements of Article 5(1) are met, it is questionable why the purpose of the stay must still be justified in detail. Depending on the circumstances, such an obligation to state the purpose of stay may violate the private sphere of the individual, and the statement of the purpose of stay may furthermore also affect the decisions of the competent authorities (when making use of their discretion). It is further unclear when a purpose of stay can be considered as having been ‘justified’: It will be difficult to provide actual proof for several purposes of stay. Finally, it should be pointed out that the interests of the Member States are sufficiently protected by ensuring that the third-country national is not a threat to public policy, internal security, public health or the international relations of any of the Member States. Against this background, the justification of the purpose of stay in Article 5(1)(c) – whereas the standard of ‘proof’ should be quite low in order not to impede the right of entry – should be interpreted as to only be required in order to ensure that the person concerned is not a risk to any of the public interests mentioned in Article 5(1)(e).

81 For an updated list of the reference amounts notified visit the website of the Directorate-General for Migration and Home Affairs at http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015].

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4. No Article 96 SIC alert in the SIS for the purpose of refusing entry (Article 5(1)(d)) 18

It should be recalled82 that a third-country national who is married to a Union citizen may not be refused entry solely because of an Article 96 SIC alert.83 In such situations, the rules on the right of free movement laid down in EU law apply and take precedence so that the authorities must examine in each individual case if the person concerned constitutes a risk for public order and security.

5. No threat to public policy, internal security, public health or international relations (Article 5(1)(e)) Not constituting a threat to public policy, internal security, public health or international relations of any of the Schengen states is the last condition mentioned in Article 5(1). 20 The condition that the person may not constitute a threat to public health is new compared to Article 5 SIC.84 The notion is defined in Article 2(19) Regulation 562/2006 and means any disease with epidemic potential and other infectious or contagious diseases if there are certain protection provisions applying to nationals of the Member State concerned. 21 Entry is to be refused if the third-country national is considered a threat to any of the listed public interests of any Member State. The third-country national therefore has (theoretically) to meet the respective requirements of all Member States, which can constitute a significant obstacle. Even though these are EU law notions, Member States have a certain margin of appreciation and as a result, the concepts of these public interests in the Member States may differ. 19

IV. Derogations from the conditions of entry (Article 5(4)) Article 5(4) provides for three possible derogations from Article 5(1).

22

1. Right of transit when in possession of a residence permit or a long-stay visa (Article 5(4)(a)) If a third-country national is in possession of a residence permit or a long-stay visa, he has the right of transit through the other Schengen states in order to reach the state that issued his permit, even if he does not fulfil all the conditions of Article 5(1). 24 Article 5(4)(a) is also to be interpreted as granting individual rights to the persons concerned. According to this provision, entry into the Schengen area can only be refused if there is an alert with the instruction to refuse entry or transit in the national database of the Schengen states whose external borders he wants to cross. As a result, third-country nationals who hold a residence permit need generally not prove that they have sufficient means of subsistence, neither need they provide supporting documents identifying their purpose of stay. 23

2. Issue of visa at the border (Article 5(4)(b)) 25

To a third-country national who fulfils all the conditions in Article 5(1) with the exception of the necessary visa, a visa can be issued at the border pursuant to the Visa Code Regulation 810/2009. 82

See the comments made above on Article 3 MN 3. ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. 84 See Peers, EJML 2006, p. 332. 83

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 6–12

Part B II

3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 5(4)(c)) Third-country nationals who do not fulfil the conditions of Article 5(1) may be 26 granted entry on humanitarian grounds, on grounds of national interest or because of international obligations. The latter reason is of particular importance for persons seeking international protection and in the context of the non-refoulement principle. If a SIS alert exists for that person, the Member state authorising entry has to inform the other Member States. Article 5(4)(c) is worded in a non-binding way (‘… may be granted …’) leaving the 27 decision to grant entry in such cases to the discretion of the Member State concerned. It should be remembered, however, that the obligations flowing from the prohibition of refoulement are of mandatory nature and under certain conditions prohibit the rejection of a person at the border85.

CHAPTER II Control of external borders and refusal of entry Article 6 Conduct of border checks 1. Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 7 Border checks on persons 1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out. 2. All persons shall undergo a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents. Such a minimum check shall consist of a rapid and straightforward verification, where appropriate by using technical devices and by consulting, in the relevant databases, information exclusively on stolen, misappropriated, lost and invalidated documents, of the validity of the document authorising the legitimate holder to cross the border and of the presence of signs of falsification or counterfeiting. The minimum check referred to in the first subparagraph shall be the rule for persons enjoying the right of free movement under Union law. 85 On the question of a right of entry for asylum seekers see ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41; and the detailed comments on refugees, asylum seekers and persons in need of international protection above Article 1 MN 12–18.

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However, on a non-systematic basis, when carrying out minimum checks on persons enjoying the right of free movement under Union law, border guards may consult national and European databases in order to ensure that such persons do not represent a genuine, present and sufficiently serious threat to the internal security, public policy, international relations of the Member States or a threat to the public health. The consequences of such consultations shall not jeopardise the right of entry of persons enjoying the right of free movement under Union law into the territory of the Member State concerned as laid down in Directive 2004/38/EC. 3. On entry and exit, third-country nationals shall be subject to thorough checks. (a) thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 5(1) and, where applicable, of documents authorising residence and the pursuit of a professional activity. This shall include a detailed examination covering the following aspects: (i) verification that the third-country national is in possession of a document which is valid for crossing the border and which has not expired, and that the document is accompanied, where applicable, by the requisite visa or residence permit; (ii) thorough scrutiny of the travel document for signs of falsification or counterfeiting; (iii) examination of the entry and exit stamps on the travel document of the third-country national concerned, in order to verify, by comparing the dates of entry and exit, that the person has not already exceeded the maximum duration of authorised stay in the territory of the Member States; (iv) verification regarding the point of departure and the destination of the third-country national concerned and the purpose of the intended stay, checking if necessary, the corresponding supporting documents; (v) verification that the third-country national concerned has sufficient means of subsistence for the duration and purpose of the intended stay, for his or her return to the country of origin or transit to a third country into which he or she is certain to be admitted, or that he or she is in a position to acquire such means lawfully; (vi) verification that the third-country national concerned, his or her means of transport and the objects he or she is transporting are not likely to jeopardise the public policy, internal security, public health or international relations of any of the Member States. Such verification shall include direct consultation of the data and alerts on persons and, where necessary, objects included in the SIS and in national data files and the action to be performed, if any, as a result of an alert; (aa) if the third country national holds a visa referred to in Article 5(1)(b), the thorough checks on entry shall also comprise verification of the identity of the holder of the visa and of the authenticity of the visa, by consulting the Visa Information System (VIS) in accordance with Article 18 of Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation)(21); (ab) by way of derogation, where: (i) traffic of such intensity arises that the waiting time at the border crossing point becomes excessive; (21)

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Art. 6–12

Part B II

(ii) all resources have already been exhausted as regards staff, facilities and organisation; and (iii) on the basis of an assessment there is no risk related to internal security and illegal immigration; the VIS may be consulted using the number of the visa sticker in all cases and, on a random basis, the number of the visa sticker in combination with the verification of fingerprints. However, in all cases where there is doubt as to the identity of the holder of the visa and/or the authenticity of the visa, the VIS shall be consulted systematically using the number of the visa sticker in combination with the verification of fingerprints. This derogation may be applied only at the border crossing point concerned for as long as the above conditions are met; (ac) the decision to consult the VIS in accordance with point (ab) shall be taken by the border guard in command at the border crossing point or at a higher level. The Member State concerned shall immediately notify the other Member States and the Commission of any such decision; (ad) each Member State shall transmit once a year a report on the application of point (ab) to the European Parliament and the Commission, which shall include the number of third-country nationals who were checked in the VIS using the number of the visa sticker only and the length of the waiting time referred to in point (ab)(i); (ae) points (ab) and (ac) shall apply for a maximum period of three years, beginning three years after the VIS has started operations. The Commission shall, before the end of the second year of application of points (ab) and (ac), transmit to the European Parliament and to the Council an evaluation of their implementation. On the basis of that evaluation, the European Parliament or the Council may invite the Commission to propose appropriate amendments to this Regulation; (b) thorough checks on exit shall comprise: (i) verification that the third-country national is in possession of a document valid for crossing the border; (ii) verification of the travel document for signs of falsification or counterfeiting; (iii) whenever possible, verification that the third-country national is not considered to be a threat to public policy, internal security or the international relations of any of the Member States; (c) In addition to the checks referred to in point (b) thorough checks on exit may also comprise: (i) verification that the person is in possession of a valid visa, if required pursuant to Regulation (EC) No 539/2001, except where he or she holds a valid residence permit; such verification may comprise consultation of the VIS in accordance with Article 18 of Regulation (EC) No 767/2008; (ii) verification that the person did not exceed the maximum duration of authorised stay in the territory of the Member States; (iii) consultation of alerts on persons and objects included in the SIS and reports in national data files; (d) for the purpose of identification of any person who may not fulfil, or who may no longer fulfil, the conditions for entry, stay or residence on the territory of the Member States, the VIS may be consulted in accordance with Article 20 of Regulation (EC) No 767/2008.

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Entry and Border Controls

4. Where facilities exist and if requested by the third-country national, such thorough checks shall be carried out in a private area. 5. Without prejudice to the second subparagraph, third-country nationals subject to a thorough second line check shall be given written information in a language which they understand or may reasonably be presumed to understand, or in another effective way, on the purpose of, and the procedure for, such a check. This information shall be available in all the official languages of the Union and in the language(s) of the country or countries bordering the Member State concerned and shall indicate that the third-country national may request the name or service identification number of the border guards carrying out the thorough second line check, the name of the border crossing point and the date on which the border was crossed. 6. Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive 2004/38/EC. 7. Detailed rules governing the information to be registered are laid down in Annex II. 8. Where points (a) or (b) of Article 4(2) apply, Member States may also provide derogations from the rules set out in this Article.

Article 8 Relaxation of border checks 1. Border checks at external borders may be relaxed as a result of exceptional and unforeseen circumstances. Such exceptional and unforeseen circumstances shall be 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. 2. Where border checks are relaxed in accordance with paragraph 1, border checks on entry movements shall in principle take priority over border checks on exit movements. The decision to relax checks shall be taken by the border guard in command at the border crossing point. Such relaxation of checks shall be temporary, adapted to the circumstances justifying it and introduced gradually. 3. Even in the event that checks are relaxed, the border guard shall stamp the travel documents of third-country nationals both on entry and exit, in accordance with Article 10. 4. Each Member State shall transmit once a year a report on the application of this Article to the European Parliament and the Commission.

Article 9 Separate lanes and information on signs 1. Member States shall provide separate lanes, in particular at air border crossing points in order to carry out checks on persons, in accordance with Article 7. Such lanes shall be differentiated by means of the signs bearing the indications set out in the Annex III. Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States not applying Article 20 at their

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 6–12

Part B II

common borders. The signs bearing the indications set out in the Annex III shall be used if Member States provide separate lanes at those borders. Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border. 2. (a) Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign in part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign in part B1 (‘visa not required’) and part B2 (‘all passports’) of Annex III. Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign in part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign in part B2 (‘all passports’) of Annex III to this Regulation. (b) All other persons shall use the lanes indicated by the sign in part B2 (‘all passports’) of Annex III. The indications on the signs referred to in points (a) and (b) may be displayed in such language or languages as each Member State considers appropriate. The provision of separate lanes indicated by the sign in part B1 (‘visa not required’) of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs. 3. At sea and land border crossing points, Member States may separate vehicle traffic into different lanes for light and heavy vehicles and buses by using signs as shown in Part C of Annex III. Member States may vary the indications on those signs where appropriate in the light of local circumstances. 4. In the event of a temporary imbalance in traffic flows at a particular border crossing point, the rules relating to the use of the different lanes may be waived by the competent authorities for the time necessary to eliminate such imbalance.

Article 10 Stamping of the travel documents 1. The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to: (a) the documents, bearing a valid visa, enabling third-country nationals to cross the border; (b) the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border; (c) the documents enabling third-country nationals not subject to a visa requirement to cross the border. 2. The travel documents of nationals of third countries who are members of the family of a Union citizen to whom Directive 2004/38/EC applies, but who do not present the residence card provided for in that Directive, shall be stamped on entry and exit. The travel documents of nationals of third countries who are members of the family of nationals of third countries enjoying the right of free movement under Union law, but who do not present the residence card provided for in Directive 2004/ 38/EC, shall be stamped on entry and exit. Epiney/Egbuna-Joss

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Entry and Border Controls

3. No entry or exit stamp shall be affixed: (a) to the travel documents of Heads of State and dignitaries whose arrival has been officially announced in advance through diplomatic channels; (b) to pilots’ licences or the certificates of aircraft crew members; (c) to the travel documents of seamen who are present within the territory of a Member State only when their ship puts in and in the area of the port of call; (d) to the travel documents of crew and passengers of cruise ships who are not subject to border checks in accordance with point 3.2.3 of Annex VI; (e) to documents enabling nationals of Andorra, Monaco and San Marino to cross the border; (f) to the travel documents of crews of passengers and goods trains on international connections; (g) to the travel documents of nationals of third countries who present a residence card provided for in Directive 2004/38/EC. 3. Exceptionally, at the request of a third-country national, insertion of an entry or exit stamp may be dispensed with if insertion might cause serious difficulties for that person. In that case, entry or exit shall be recorded on a separate sheet indicating that person’s name and passport number. That sheet shall be given to the third-country national. The competent authorities of the Member States may keep statistics of such exceptional cases and may provide those statistics to the Commission. 4. The practical arrangements for stamping are set out in Annex IV. 5. Whenever possible, third-country nationals shall be informed of the border guard’s obligation to stamp their travel document on entry and exit, even where checks are relaxed in accordance with Article 8. 6. The Commission shall report to the European Parliament and the Council by the end of 2008 on the operation of the provisions on stamping travel documents.

Article 11 Presumption as regards fulfilment of conditions of duration of stay 1. If the travel document of a third-country national does not bear an entry stamp, the competent national authorities may presume that the holder does not fulfil, or no longer fulfils, the conditions of duration of stay applicable within the Member State concerned. 2. The presumption referred to in paragraph 1 may be rebutted where the thirdcountry national provides, by any means, credible evidence, such as transport tickets or proof of his or her presence outside the territory of the Member States, that he or she has respected the conditions relating to the duration of a short stay. In such a case: (a) where the third-country national is found on the territory of a Member State applying the Schengen acquis in full, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of one of the Member States applying the Schengen acquis in full; (b) where the third-country national is found on the territory of a Member State in respect of which the decision contemplated in Article 3(2) of the 2003 Act of Accession has not been taken, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of such a Member State. 84

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Part B II

In addition to the indications referred to in points (a) and (b), a form as shown in Annex VIII may be given to the third-country national. Member States shall inform each other and the Commission and the Council General Secretariat of their national practices with regard to the indications referred to in this Article. 3. Should the presumption referred to in paragraph 1 not be rebutted, the thirdcountry national may be returned in accordance with Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals(22) and with national law respecting that Directive. 4. The relevant provisions of paragraph 1 and 2 shall apply mutatis mutandis in the absence of an exit stamp.

Article 12 Border surveillance 1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. A person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC. 2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points. 3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected. 4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning additional measures governing surveillance. Content I. Basic principles for the carrying out of border checks (Article 6). . . . . . . . . 1 1. Human dignity (Article 6(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Prohibition of discrimination (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Detailed guidelines for the conduction of border checks (Article 7). . . . . . 5 III. Separate lines for persons enjoying the right of free movement and third-country nationals (Article 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 IV. Exceptional and temporary relaxation of border checks (Article 8) . . . . . . 7 V. Unstamped travel documents (Article 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 VI. Principles on border surveillance (Article 12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

(22)

OJ L 348/98 (2008), p. 98.

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I. Basic principles for the carrying out of border checks (Article 6) 1

Article 6 codifies basic principles that shall be respected by the border guards when conducting border checks explained in detail in Article 7. This article was inserted at the behest of the European Parliament.86

1. Human dignity (Article 6(1)) 2

According to Article 6(1) (and in compliance with Article 1 EU Charter) border guards are to fully respect human dignity, and any measure taken by them has to be proportionate to the objectives of the measure in question. In cases involving vulnerable persons like e. g. children, unaccompanied minors and persons with serious health concerns, the border guards are urged to pay particular attention to these principles87. In compliance with Article 47 EU Charter, the Member States have to provide appropriate legal remedies against alleged infringements of this provision88.

2. Prohibition of discrimination (Article 6(2)) Article 6(2) prohibits any discriminatory treatment by border guards on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The explicit prohibition of discrimination in Article 6(2) is a significant improvement; the SIC and the Common Manual did not contain a similar provision. It is worth pointing out that Article 6(2) does not prohibit differential treatment on grounds of nationality. Furthermore, the national authorities generally have rather broad discretionary powers when applying EU legislation in the field of immigration and border control. Nevertheless, a systematic differential treatment of for example black Africans or Muslim persons is clearly prohibited by Article 6 Regulation 562/2006. 4 The principle of non-discrimination on the grounds mentioned in Article 6(2) is also a general principle of law and thereby a fundamental right in EU law, which is further supported by the explicit codification in Article 21(2) EU Charter of Fundamental Rights89. The prohibition of discrimination on the grounds mentioned in Article 6(2) is therefore not only part of secondary but also of primary law, which can be relevant in case of conflict with other provisions of the regulation or other secondary law. The anti-discrimination directives that were adopted on the basis of Article 19 TFEU (formerly Article 13 EC Treaty) – in particular Directive 2000/4390 and Directive 2000/7891 – are, however, not applicable to the entry of third-country nationals into the EU territory since this area does not fall within the scope of application of these instruments.92 3

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See Peers, EJML 2006, p. 335 with further references. See also recital (7) Reg. 562/2006. 88 See ECJ, Zakira, C-23/12, EU:C:2013:24, para 40. 89 See above Article 3a. 90 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180/22. 91 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303/16. 92 See for example Article 3(2) Directive 2000/43/EC which explicitly excludes the area of entry into and residence in the territory of the Member States. The scope of application of Directive 2000/78/EC is restricted to the areas of employment and occupation. On the implications and its potential application of the Community’s non-discrimination principle to the EU rules on border control and visa see Cholewinski, in Anderson/Apap (eds), p. 81, 93 et seqq. 87

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II. Detailed guidelines for the conduction of border checks (Article 7) Article 7 states in detail the guidelines that have to be respected by the Member 5 States when conducting border checks. In comparison to Article 6 SIC, the guidelines are worded in much more detail and concern partially also rather technical aspects. A lot of the rules set out in Article 7 are self-explanatory and need no further analysis. As a matter of principle, all persons – including EU citizens and their family members and other persons making use of their right of free movement – shall undergo a minimum check when crossing the external borders with a view to establishing their identities (‘first-line check’; Article 7(2)). Third country nationals not enjoying the right of free movement shall be subjected to thorough checks (‘second-line checks’) on entry (Article 7(3)(a)) and on exit (Article 7(3)(b) and (c)). The third-country nationals subjected to a ‘second-line check’ are to be informed in writing in a language they understand or may be expected to understand, or in another effective way, of the purpose and the procedure of such a check. The written information has to be available in all official EU languages and the language of the neighbouring countries of the Member State concerned and must in particular indicate that the third-country nationals have an explicit right to request the name or identification number of the border guards carrying out the check (Article 7(5)).

III. Separate lines for persons enjoying the right of free movement and third-country nationals (Article 9) Considering the different intensity of checks to be carried out on persons enjoying 6 the rights of free movement laid down in EU law on the one hand and third-country nationals on the other hand, Member States shall provide separate lines for people subjected only to a first-line check and persons subjected to a thorough check (Article 9), making use of the signs set out in Annex III.93

IV. Exceptional and temporary relaxation of border checks (Article 8) In the event of exceptional and unforeseen circumstances, Article 8 allows the 7 exceptional and temporary relaxation of border checks in order to avoid excessive waiting times (Article 8(1)). Such a relaxation is only permissible if both exceptional and unforeseen circumstances exist. It can be concluded e contrario that Article 8 is not pertinent in situations of ‘normal’ and/or foreseeable heavy traffic at external borders. In such situations, it is the duty of the Member States to take the necessary steps with respect to the number of staff, infrastructure and organisation in order to deal with the heavy traffic. The question whether the circumstances are really ‘exceptional’ and ‘unforeseen’ cannot always be answered clearly, leaving some discretion to the Member States. If the checks are relaxed, checks on entry take priority over checks on exit (Article 8(2)), leaving the obligation to systematically stamp the travel documents according to Article 10 unaffected94 (Article 8(3)).

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Article 9 took over Council Decision 2004/581/EC, OJ 2004 L 261/36. Article 10 and Article 11 (presuming the non-fulfilment of the conditions of stay when the document is not stamped) took over the rules of Regulation 2133/2004, OJ 2004 L 369/5. 94

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V. Unstamped travel documents (Article 11) Article 11 concerns cases where the travel document does not bear an entry stamp. As a rule, the competent authorities may presume that the person does not or no longer fulfill the conditions of maximum duration of stay (Article 11(1)). This presumption can be rebutted under certain conditions (Article 11(2)). 9 If the presumption is not rebutted, the authorities may return the third-country national in accordance with the Return Directive 2008/115/EC and the relevant national law. The ECJ has, however, clarified that Article 11(3) does not constitute a mandatory obligation to expel the person.95 8

VI. Principles on border surveillance (Article 12) 10

Article 12 formulates some rather broad principles for the carrying out of border surveillance.96 With regards to sea border surveillance, the Council adopted some additional rules and guidelines in the form of Council Decision 2010/252/EU in 2010. The Council based its decision on former Article 12(5) Reg. 562/006 which provided for the possibility for additional measures to be adopted, following the so-called regulatory procedure with scrutiny (formerly in Article 33 (2) Reg. 562/2006), as long as the amendments concerned non-essential elements of the regulation. The Parliament brought an action for annulment against the Council, arguing that the Council had exceeded its implementing powers. The Court followed the Parliament’s reasoning and annulled the decision on procedural grounds97. Article 12(5) has since been amended98. The content of much of the annulled Council Decision was taken over by a later Commission proposal – this time following the ordinary legislative procedure – and adopted as the Sea Borders Regulation (EU) 565/ 2014 in May 201499.

Article 13 Refusal of entry 1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. 2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately. The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority 95

ECJ, Garcia and Cabrera, C-261/08 and C-348/08, EU:C:2009:648. See the definition in Article 2(11). 97 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516; see Cornelisse, CML Rev 51 (2014), p. 763–765. 98 See the remarks on Reg. 610/2013, above Article 1 MN 27. 99 See the extensive commentary on this regulation by Ryan, in this volume. 96

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empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form. 3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the thirdcountry national in accordance with national law shall also be given to the thirdcountry national. Lodging such an appeal shall not have suspensive effect on a decision to refuse entry. Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry. 4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned. 5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons who were refused entry and the type of border (land, air or sea) at which they were refused entry and submit them yearly to the Commission (Eurostat) in accordance with Regulation (EC) No 862/ 2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection(23). 6. Detailed rules governing refusal of entry are given in Part A of Annex V. Content I. Refusal of entry (Article 13(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedural guarantees if entry is refused (Article 13(2) and (3)). . . . . . . . . . 1. Substantiated decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Right to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Obligations of the carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 6

I. Refusal of entry (Article 13(1)) Article 13 is the correlate to Article 5 and establishes the obligation of Member 1 States to refuse entry if the conditions of the latter provision are not fulfilled (Article 13(1)). This obligation is without prejudice to special provisions in the context of the right of asylum and the prohibition of refoulement100 and for holder of national visas authorising a longer stay.101

II. Procedural guarantees if entry is refused (Article 13(2) and (3)) If entry is refused, certain procedural guarantees found in Article 13(2) and (3) have 2 to be granted to the third-country national. Part A of Annex V contains further details on the procedures for refusing entry (Article 13(6)). (23)

OJ L 199, 31.7.2007, p. 23. Such cases are also already covered by the derogation provided for in Article 5(4)(c) Regulation (EC) no. 562/2006. 101 Peers, EJML 2006, p. 337 et seqq. 100

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Entry and Border Controls

The explicit inclusion of procedural guarantees in the Schengen Borders Code was an important achievement of the European Parliament during negotiations102 and a significant improvement compared to the rules contained in the SIC. The Common Manual contained rules similar to the ones codified in Article 13 but they were not legally binding.103

1. Substantiated decision 3

Article 13(2) makes it mandatory for the authorities to substantiate the refusal decision and to give precise reasons by making use of the standard form found in Annex V, part B of Regulation 562/2006 which contains a number of precisions on the procedure for refusing entry at the border. According to part A of Annex V(1)(a) the third-country national has to sign the form and shall be given a copy.104

2. Right to appeal The refusal decision will take immediate effect, but according to Article 13 (3) subpara. 1, the person refused entry has the right to appeal. The appeal will be conducted in accordance with national law and the refused third-country national is to be informed about how to find legal representation in order to lodge the appeal.105 The appeal may only be addressed against the decision to refuse entry, and not against other alleged infringements in relation to the refusal decision.106 5 Such an appeal will, however, have no suspensive effect (Article 13(3) subpara. 2) with the result that the third-country national cannot enter or remain in the territory of the Schengen states whose external borders he intended to cross. This is also stated in Article 13(4) that obliges the border guards to make sure that the third-country national does not enter the Member State concerned. 4

III. Obligations of the carrier 6

In situations where the third-country national has arrived at the border by a carrier, Annex V, Part A(3) authorises the border guards to order the carrier to bring the thirdcountry national back to the third country from which he was brought without delay.

CHAPTER III Staff and resources for border control and cooperation between Member States Article 14 Staff and resources for border control Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 6 to 13, in such a way as to ensure an efficient, high and uniform level of control at their external borders. 102

See Brouwer, Digital Borders, p. 290. See Peers, EJML 2006, p. 338 et seq. 104 See Brouwer, Digital Borders, p. 290. 105 See Brouwer, Digital Borders, p. 290. 106 ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 40, 42. 103

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Art. 17

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Article 15 Implementation of controls 1. The border control provided for by Articles 6 to 13 shall be carried out by border guards in accordance with the provisions of this Regulation and with national law. When carrying out that border control, the powers to instigate criminal proceedings conferred on border guards by national law and falling outside the scope of this Regulation shall remain unaffected. Member States shall ensure that the border guards are specialised and properly trained professionals, taking into account common core curricula for border guards established and developed by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States established by Council Regulation (EC) No 2007/2004. Training curricula shall include specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States, with the support of the Agency, shall encourage border guards to learn the languages necessary for the carrying-out of their tasks. 2. Member States shall notify to the Commission the list of national services responsible for border control under their national law in accordance with Article 34. 3. To control borders effectively, each Member State shall ensure close and constant cooperation between its national services responsible for border control.

Article 16 Cooperation between Member States 1. The Member States shall assist each other and shall maintain close and constant cooperation with a view to the effective implementation of border control, in accordance with Articles 6 to 15. They shall exchange all relevant information. 2. Operational cooperation between Member States in the field of management of external borders shall be coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (hereinafter referred to as the Agency) established by Regulation (EC) No 2007/2004. 3. Without prejudice to the competences of the Agency, Member States may continue operational cooperation with other Member States and/or third countries at external borders, including the exchange of liaison officers, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on the operational cooperation referred to in the first subparagraph. 4. Member States shall provide for training on the rules for border control and on fundamental rights. In that regard, account shall be taken of the common training standards as established and further developed by the Agency.

Article 17 Joint control 1. Member States which do not apply Article 20 to their common land borders may, up to the date of application of that Article, jointly control those common Epiney/Egbuna-Joss

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Part B II Art. 19

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borders, in which case a person may be stopped only once for the purpose of carrying out entry and exit checks, without prejudice to the individual responsibility of Member States arising from Articles 6 to 13. To that end, Member States may conclude bilateral arrangements between themselves. 2. Member States shall inform the Commission of any arrangements concluded in accordance with paragraph 1.

CHAPTER IV Specific rules for border checks Article 18 Specific rules for the various types of border and the various means of transport used for crossing the external borders The specific rules set out in Annex VI shall apply to the checks carried out at the various types of border and on the various means of transport used for crossing border crossing points. Those specific rules may contain derogations from Articles 4 and 5 and Articles 7 to 13.

Article 19 Specific rules for checks on certain categories of persons 1. The specific rules set out in Annex VII shall apply to checks on the following categories of persons: (a) Heads of State and the members of their delegation(s); (b) pilots of aircraft and other crew members; (c) seamen; (d) holders of diplomatic, official or service passports and members of international organisations; (e) cross-border workers; (f) minors; (g) rescue services, police and fire brigades and border guards; (h) offshore workers. Those specific rules may contain derogations from Articles 4 and 5 and Articles 7 to 13. 2. Member States shall notify to the Commission the model cards issued by their Ministries of Foreign Affairs to accredited members of diplomatic missions and consular representations and members of their families in accordance with Article 34.

Article 19a By way of derogation from the provisions of this Regulation relating to the establishment of border crossing points, and until the entry into force of a decision by the Council on the full application of the provisions of the Schengen acquis in Croatia pursuant to Article 4(2) of the Act of Accession or until this Regulation is amended to include provisions governing border control at common border crossing 92

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points, whichever is the earlier, Croatia may maintain the common border crossing points at its border with Bosnia and Herzegovina. At these common border crossing points, border guards of one party shall carry out entry and exit checks on the territory of the other party. All entry and exit checks by Croatian border guards shall be carried out in compliance with the acquis of the Union, including Member States’ obligations as regards international protection and non-refoulement. The relevant bilateral agreements establishing the common border crossing points in question shall, if necessary, be amended to that end. Articles 14–17, 19a Regulation 562/2006 provide rules on the necessary staff and 1 resources for border control (Article 14), the implementation of the controls by national border guards and the obligation of Member States to properly train them (Article 15), on the cooperation between Member States and between Member States and FRONTEX (Article 16) as well as rules on the common control of land borders of States that are not yet full Schengen Members and have therefore not yet abolished the checks at internal borders pursuant to Article 20 Regulation 562/2006 (Article 17). Article 19a allows Croatia to make certain derogations from Reg. 562/2006 with regards to its common border crossing points with Bosnia-Herzegovina until it becomes a full Schengen Member State. Articles 18 and 19 contain specific rules on various types of borders and certain 2 categories of persons that are explained in greater detail in the annexes VI and VII.

CHAPTER IVa Specific measures in the case of serious deficiencies relating to external border control Article 19a Measures at external borders and support by the Agency 1. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report drawn up pursuant to Article 14 of Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis(24), and with a view to ensuring compliance with the recommendations referred to in Article 15 of that Regulation, the Commission may recommend, by means of an implementing act, that the evaluated Member State take certain specific measures, which may include one or both of the following: (a) initiating the deployment of European border guard teams in accordance with Regulation (EC) No 2007/2004; (b) submitting its strategic plans, based on a risk assessment, including information on the deployment of personnel and equipment, to the Agency for its opinion thereon. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 33a(2). 2. The Commission shall inform the committee established pursuant to Article 33a(1) on a regular basis of the progress in the implementation of the measures referred to in paragraph 1 of this Article and on its impact on the deficiencies identified. (24)

OJ L 295, 6.11.2013, p. 27.

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It shall also inform the European Parliament and the Council. 3. Where an evaluation report as referred to in paragraph 1 has concluded that the evaluated Member State is seriously neglecting its obligations and must therefore report on the implementation of the relevant action plan within three months in accordance with Article 16(4) of Regulation (EU) No 1053/2013, and where, following that three-month period, the Commission finds that the situation persists, it may trigger the application of the procedure provided for in Article 26 of this Regulation where all the conditions for doing so are fulfilled. Article 19a was introduced as part of the so-called ‘Schengen Governance package’ in November 2013107. It needs to be read in conjunction with the new rules on the temporary reintroduction of internal border controls (Art. 23–30). 2 If an evaluation report drawn up pursuant to Article 37a in conjunction with Regulation 1053/2013 identifies that there are serious deficiencies in the carrying out of external border controls of a Schengen State, the Commission may recommend certain measures to the Member State concerned, including in particular the deployment of European border guard teams in accordance with the FRONTEX Regulation 2007/2004 and the submission of the Commissions strategic plans to FRONTEX for its opinion thereon. 3 The Commission has to inform the Committee established pursuant to Article 33a(1) as well as the Parliament and the Council on the progress and the impact of these measures. 4 If the evaluated Member State is seriously neglecting its external border control obligations, it has to report on the implementation of the drawn-up action plan after three months. If the problems still persist and put the overall functioning of the area without internal border control at risk, Article 26 Reg. 562/2006 may apply. According to that provision, the Council may exceptionally and as a last resort recommend that one or more Member State(s) may reintroduce internal border controls for up to six months.108 1

TITLE III INTERNAL BORDERS CHAPTER I Abolition of border control at internal borders Article 20 Crossing internal borders Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.

Article 21 Checks within the territory The abolition of border control at internal borders shall not affect: 107 108

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See below Articles 23–31 MN 3. See in more detail the comments on Articles 23–31 below.

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(a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures: (i) do not have border control as an objective, (ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, (iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders, (iv) are carried out on the basis of spot-checks; (b) security checks on persons carried out at ports and airports by the competent authorities under the law of each Member State, by port or airport officials or carriers, provided that such checks are also carried out on persons travelling within a Member State; (c) the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents; (d) the possibility for a Member State to provide by law for an obligation on thirdcountry nationals to report their presence on its territory pursuant to the provisions of Article 22 of the Schengen Convention.

Article 22 Removal of obstacles to traffic at road crossing-points at internal borders Member States shall remove all obstacles to fluid traffic flow at road crossingpoints at internal borders, in particular any speed limits not exclusively based on road-safety considerations. At the same time, Member States shall be prepared to provide for facilities for checks in the event that internal border controls are reintroduced. Content I. General principle: absence of internal border controls (Article 20) . . . . . . . II. Checks within the territory of Member States (Article 21). . . . . . . . . . . . . . . . . 1. Police controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Checks at ports and airports, the obligation to carry papers, and the obligation of third-country nationals to report their presence. . . . . . . . . . 3. Jurisprudence of the ECJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5

I. General principle: absence of internal border controls (Article 20) Article 20 states the principle that internal borders may be crossed at any point 1 without border checks on persons. This principle was previously codified in Article 2(1) SIC. Closely connected to the elimination of internal border controls is the obligation to remove all obstacles to traffic in Article 22.

II. Checks within the territory of Member States (Article 21) 1. Police controls The elimination of controls at internal borders does not affect the right of Member 2 States to carry out police controls within their territory. Such controls are rather Epiney/Egbuna-Joss

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regarded as ‘compensatory measures’ for the lifting of border controls, recurring for example to the methods of ‘dragnet controls’ (temporarily limited control of persons in the border area or further inside the territory) or of ‘target search’ (targeted search for persons by specialised police entities).109 Such measures have sometimes to be provided for in the national legal orders of the Member States concerned and must be in conformity with EU law. They may therefore especially not have effects equivalent to border checks, which is explicitly prohibited in Article 21(a). The latter provision lists in a non-exhaustive manner the measures to be considered as non-equivalent to border checks. Border checks are essentially characterized by being carried out irrespective of suspicion, in a stationary manner and by being carried out on the sole ground of crossing of the border. ‘Normal’ national police measures will usually not have all these characteristics and therefore not be considered to have equivalent effects to border checks. However, systematic police controls in the border area if carried out without suspicion are not in conformity with Article 20 since their effect is similar to actual border controls and compromise the effectiveness of the prohibition of internal border controls.

2. Checks at ports and airports, the obligation to carry papers, and the obligation of third-country nationals to report their presence 3

Article 21(b) clarifies that the principle of absence of internal border checks on person does not affect the admissibility of security checks at ports and airports as long as they are carried out in a non-discriminatory manner. Article 21(c) provides that national laws on the obligation to carry papers or documents remain unaffected allowing therefore the competent authorities to demand in conformity with their national law that papers and documents must be carried along and produced if requested. Equally unaffected remains a possible obligation of third-country nationals according to national law to report their presence in the territory of a Schengen state pursuant to Article 22 SIC (Article 21(d)).

3. Jurisprudence of the ECJ The ECJ has had the opportunity to clarify the meaning of police checks which are of equivalent effects to border checks. The joint cases of Melki and Abdeli,110 concerned a French law which allowed the French police authorities to check the identity of anyone in the border area irrespective of the behaviour of the person concerned and of specific circumstances. Even though the Court acknowledged that these provision did not have the same objective as border controls but aimed at establishing whether the obligations to hold, carry and produce identity papers were fulfilled (see Article 21(c)), it held that the French law did not contain enough safeguards ‘in particular in relation to the intensity and frequency of the controls’, and that those checks might have effects equivalent to border checks in practice and were therefore precluded by Article 21(a). 5 In Adil111, the Court considered a Dutch law to be in compliance with the requirements of the Schengen Borders Code. The law permitted officials responsible for border surveillance to carry out checks near the border with a view to establishing whether the persons stopped satisfied the requirements for lawful residence in the Netherlands. The 4

109 See Epiney/Meier/Egbuna-Joss, ‘Schengen/Dublin’, in Thu ¨ rer/Weber/Portmann/Kellerhals (eds), Bilaterale Vertra¨ge I & II Schweiz – EU (Schultheiss, 2007), p. 903, 927 with further references. 110 ECJ, Melki and Abdeli, C-188/10 and C-189/10, EU:C:2010:206, paras 70–75. 111 ECJ, Adil, C-278/12, EU:C:2012:508, paras 72–87.

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ECJ held that these checks which were aimed at combatting illegal residence had a different objective than border checks. Since the law in question contained detailed rules and limitations in order to define the intensity, frequency and selectivity of the checks, the Court was satisfied that such checks did not have an equivalent effect to border checks.

CHAPTER II Temporary reintroduction of border control at internal borders Article 23 General framework for the temporary reintroduction of border control at internal borders 1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its duration exceeds 30 days. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat. 2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 24, 25 and 26. The criteria referred to, respectively, in Articles 23a and 26a shall be taken into account in each case where a decision on the reintroduction of border control at internal borders is considered pursuant, respectively, to Article 24, 25 or 26. 3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 23a and in accordance with Article 24, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods of up to 30 days. 4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months. Where there are exceptional circumstances as referred to in Article 26, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that Article.

Article 23a Criteria for the temporary reintroduction of border control at internal borders Where a Member State decides, as a last resort, on the temporary reintroduction of border control at one or more of its internal borders or at parts thereof, or decides to prolong such reintroduction, in accordance with Article 23 or Article 25(1), it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security, and shall assess the proportionality of the measure in relation to that threat. In making such an assessment, the Member State shall, in particular, take the following into account:

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(a) the likely impact of any threats to its public policy or internal security, including following terrorist incidents or threats and including those posed by organised crime; (b) the likely impact of such a measure on free movement of persons within the area without internal border control.

Article 24 Procedure for the temporary reintroduction of border control at internal borders under Article 23(1) 1. Where a Member State plans to reintroduce border control at internal borders under Article 23(1), it shall notify the other Member States and the Commission at the latest four weeks before the planned reintroduction, or within a shorter period where the circumstances giving rise to the need to reintroduce border control at internal borders become known less than four weeks before the planned reintroduction. To that end, the Member State shall supply the following information: (a) the reasons for the proposed reintroduction, including all relevant data detailing the events that constitute a serious threat to its public policy or internal security; (b) the scope of the proposed reintroduction, specifying at which part or parts of the internal borders border control is to be reintroduced; (c) the names of the authorised crossing-points; (d) the date and duration of the planned reintroduction; (e) where appropriate, the measures to be taken by the other Member States. A notification under the first subparagraph may also be submitted jointly by two or more Member States. If necessary, the Commission may request additional information from the Member State(s) concerned. 2. The information referred to in paragraph 1 shall be submitted to the European Parliament and to the Council at the same time as it is notified to the other Member States and to the Commission pursuant to that paragraph. 3. Member States making a notification under paragraph 1 may, where necessary and in accordance with national law, decide to classify parts of the information. Such classification shall not preclude information from being made available by the Commission to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament under this Article shall comply with rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission. 4. Following notification by a Member State under paragraph 1 of this Article and with a view to consultation provided for in paragraph 5 of this Article, the Commission or any other Member State may, without prejudice to Article 72 of the Treaty on the Functioning of the European Union, issue an opinion. If, based on the information contained in the notification or on any additional information it has received, the Commission has concerns as regards the necessity or proportionality of the planned reintroduction of border control at internal borders, or if it considers that a consultation on some aspect of the notification would be appropriate, it shall issue an opinion to that effect. 5. The information referred to in paragraph 1 and any Commission or Member State opinion under paragraph 4 shall be the subject of consultation, including, where appropriate, joint meetings between the Member State planning to reintroduce 98

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border control at internal borders, the other Member States, especially those directly affected by such measures, and the Commission, with a view to organising, where appropriate, mutual cooperation between the Member States and to examining the proportionality of the measures to the events giving rise to the reintroduction of border control and the threat to public policy or internal security. 6. The consultation referred to in paragraph 5 shall take place at least ten days before the date planned for the reintroduction of border control.

Article 25 Specific procedure for cases requiring immediate action 1. Where a serious threat to public policy or internal security in a Member State requires immediate action to be taken, the Member State concerned may, on an exceptional basis, immediately reintroduce border control at internal borders, for a limited period of up to ten days. 2. Where a Member State reintroduces border control at internal borders, it shall at the same time notify the other Member States and the Commission accordingly, and shall supply the information referred to in Article 24(1), including the reasons that justify the use of the procedure set out in this Article. The Commission may consult the other Member States immediately upon receipt of the notification. 3. If the serious threat to public policy or internal security persists beyond the period provided for in paragraph 1, the Member State may decide to prolong the border control at internal borders for renewable periods of up to 20 days. In doing so, the Member State concerned shall take into account the criteria referred to in Article 23a, including an updated assessment of the necessity and the proportionality of the measure, and shall take into account any new elements. In the event of such a prolongation, the provisions of Article 24(4) and (5) shall apply mutatis mutandis, and the consultation shall take place without delay after the decision to prolong has been notified to the Commission and to the Member States. 4. Without prejudice to Article 23(4), the total period during which border control is reintroduced at internal borders, on the basis of the initial period under paragraph 1 and any prolongations under paragraph 3, shall not exceed two months. 5. The Commission shall inform the European Parliament without delay of notifications made under this Article.

Article 26 Specific procedure where exceptional circumstances put the overall functioning of the area without internal border control at risk 1. In exceptional circumstances where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control as referred to in Article 19a, and insofar as those circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, border control at internal borders may be reintroduced in accordance with paragraph 2 of this Article for a period of up to six months. That period may be prolonged, no more than three times, for a further period of up to six months if the exceptional circumstances persist. 2. The Council may, as a last resort and as a measure to protect the common interests within the area without internal border control, where all other measures, in Epiney/Egbuna-Joss

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particular those referred to in Article 19a(1), are ineffective in mitigating the serious threat identified, recommend that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders. The Council’s recommendation shall be based on a proposal from the Commission. The Member States may request the Commission to submit such a proposal to the Council for a recommendation. In its recommendation, the Council shall at least indicate the information referred to in points (a) to (e) of Article 24(1). The Council may recommend a prolongation in accordance with the conditions and procedure set out in this Article. Before a Member State reintroduces border control at all or at specific parts of its internal borders under this paragraph, it shall notify the other Member States, the European Parliament and the Commission accordingly. 3. In the event that the recommendation referred to in paragraph 2 is not implemented by a Member State, that Member State shall without delay inform the Commission in writing of its reasons. In such a case, the Commission shall present a report to the European Parliament and to the Council assessing the reasons provided by the Member State concerned and the consequences for protecting the common interests of the area without internal border control. 4. On duly justified grounds of urgency relating to situations where the circumstances giving rise to the need to prolong border control at internal borders in accordance with paragraph 2 become known less than 10 days before the end of the preceding reintroduction period, the Commission may adopt any necessary recommendations by means of immediately applicable implementing acts in accordance with the procedure referred to in Article 33a(3). Within 14 days of the adoption of such recommendations, the Commission shall submit to the Council a proposal for a recommendation in accordance with paragraph 2. 5. This Article shall be without prejudice to measures that may be adopted by the Member States in the event of a serious threat to public policy or internal security under Articles 23, 24 and 25.

Article 26a Criteria for the temporary reintroduction of border control at internal borders where exceptional circumstances put the overall functioning of the area without internal border control at risk 1. Where, as a last resort, the Council recommends in accordance with Article 26(2) the temporary reintroduction of border control at one or more internal borders or at parts thereof, it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security within the area without internal border control, and shall assess the proportionality of the measure in relation to that threat. That assessment shall be based on the detailed information submitted by the Member State(s) concerned and by the Commission and any other relevant information, including any information obtained pursuant to paragraph 2 of this Article. In making such an assessment, the following considerations shall in particular be taken into account: (a) the availability of technical or financial support measures which could be or have been resorted to at national or Union level, or both, including assistance by 100

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Union bodies, offices or agencies, such as the Agency, the European Asylum Support Office, established by Regulation (EU) No 439/2010 of the European Parliament and of the Council(25) or the European Police Office (‘Europol’), established by Council Decision 2009/371/JHA(26), and the extent to which such measures are likely to adequately remedy the threat to public policy or internal security within the area without internal border control; (b) the current and likely future impact of any serious deficiencies relating to external border control identified in the context of the evaluations carried out pursuant to Regulation (EU) No 1053/2013 and the extent to which such serious deficiencies constitute a serious threat to public policy or internal security within the area without internal border control; (c) the likely impact of the reintroduction of border control on the free movement of persons within the area without internal border control. 2. Before adopting a proposal for a Council recommendation, in accordance with Article 26(2), the Commission may: (a) request Member States, the Agency, Europol or other Union bodies, offices or agencies to provide it with further information; (b) carry out on-site visits, with the support of experts from Member States and of the Agency, Europol or any other relevant Union body, office or agency, in order to obtain or verify information relevant for that recommendation.

Article 27 Informing the European Parliament and the Council The Commission and the Member State(s) concerned shall inform the European Parliament and the Council as soon as possible of any reasons which might trigger the application of Articles 19a and 23 to 26a.

Article 28 Provisions to be applied where border control is reintroduce at internal borders Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis.

Article 29 Report on the reintroduction of border control at internal borders Within four weeks of the lifting of border control at internal borders, the Member State which has carried out border control at internal borders shall present a report to the European Parliament, the Council and the Commission on the reintroduction of border control at internal borders, outlining, in particular, the initial assessment and the respect of the criteria referred to in Articles 23a, 25 and 26a, the operation of the checks, the practical cooperation with neighbouring Member States, the resulting impact on the free movement of persons, the effectiveness of the reintroduction of (25) (26)

OJ L 132, 29.5.2010, p. 11. OJ L 121, 15.5.2009, p. 37.

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border control at internal borders, including an ex-post assessment of the proportionality of the reintroduction of border control. The Commission may issue an opinion on that ex-post assessment of the temporary reintroduction of border control at one or more internal borders or at parts thereof. The Commission shall present to the European Parliament and to the Council, at least annually, a report on the functioning of the area without internal border control. The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year.

Article 30 Informing the public The Commission and the Member State concerned shall inform the public in a coordinated manner on a decision to reintroduce border control at internal borders and indicate in particular the start and end date of such a measure, unless there are overriding security reasons for not doing so.

Article 31 Confidentiality At the request of the Member State concerned, the other Member States, the European Parliament and the Commission shall respect the confidentiality of information supplied in connection with the reintroduction and prolongation of border control and the report drawn up under Article 29. Content I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The new rules on the temporary reintroduction of internal border controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Temporary internal border controls in the case of foreseeable events (Articles 23, 23a, 24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Temporary internal border controls in the case of unforeseeable circumstances (Article 25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Temporary internal border controls in the case of exceptional circumstances (Articles. 26, 26a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Judicial control and the rights of Union citizens and their family members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 5 8 10 11

I. Overview 1

Article 23 provides for the possibility to temporarily reintroduce internal border controls in order to safeguard public policy or internal security or the overall functioning of the area without internal border control.112 If controls are temporarily reinstated, the rules for external border control in Title II of Reg. 562/2006 apply mutatis mutandis (Article 28). 112 See in this context the analysis of temporary re-instatement of internal border controls under the SIC in Groenendijk, ELJ 2004, p. 150–170.

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Articles 23a–26a contain the criteria for the temporary reintroduction as well as the 2 corresponding procedural regulations. If there are any indication that the reintroduction of internal border controls might become necessary, the Commission and the Member State(s) concerned must inform the European Parliament and the Council (Article 27). In principle, the public has to be informed fully of the reasons for the re-instatement of controls (Article 30), and the Member State concerned needs to present a report after the controls have been lifted again, detailing in particular the initial assessment, the impact of the controls on the free movement of person and the effectiveness of the controls (Article 29).

II. Background In the first half of 2011, 30’000 Tunisians arrived at Italy’s shores following the 3 upheavals of the ‘Arab Spring’. After unsuccessfully appealing for support from the EU and the other Schengen States, Italy issued temporary residence cards – in violation of the Schengen Borders Code – that allowed these Tunisian citizens to travel onwards to other Schengen states. As a response, France reintroduced internal border controls on its border to Italy. France and Italy then jointly requested a revision of the rules on the reintroduction of internal border controls as well as the modification of the existing evaluation mechanism. The Commission presented two proposals in September 2011. Two years later – and after a lot of political tensions between the Member States and the Commission as well as the European Parliament and the Council – the so called ‘Schengen Governance Package’ was adopted in the form of Regulation 1051/2013 and Regulation 1053/ 2013113. It entered into force in November 2013 with a one year transitional period for implementation.

III. The new rules on the temporary reintroduction of internal border controls The new rules set out in more detail and with stricter time limits the criteria and the 4 procedures for the reintroduction of internal border controls. Three different situations may be distinguished and shall be discussed in turn.

1. Temporary internal border controls in the case of foreseeable events (Articles 23, 23a, 24) Member States may exceptionally and as a last resort reintroduce border control for 5 up to 30 days in the case of a foreseeable serious threat to public policy or internal security (e. g. major political or sport events). If the threat persists, the internal border controls may be prolonged up to a maximum of six months (Article 23). The substantive requirements of Article 23 are rather strict, although it is obvious that the reference to the notions of public policy and internal security will give the Member States a certain margin of discretion. When deciding on the reintroduction of border controls, the Member State con- 6 cerned needs to assess the necessity (whether the controls are likely to address threat) as well as their proportionality in relation to the threat. The impact on the measures on the 113 The different positions of the institution can be found in detail in Peers, The Future of Schengen, p. 30–41.

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free movement of persons must be taken into account when making the assessment (Article 23a). 7 The Commission, the Parliament, the Council and the other Member States shall be notified of the planned reintroduction of internal border controls at least four weeks ahead of time (Article 24(1), (2)). The Commission and any Member State may issue an opinion and consultation and joint meetings shall be held before the controls are introduced (Article 24(4)–(6))114.

2. Temporary internal border controls in the case of unforeseeable circumstances (Article 25) If the serious threat to public policy or internal security (e. g. a terrorist attack) requires immediate action, the Member States concerned may immediately reintroduce border controls for up to ten days (para. 1). If the threat persists, the period for the controls may be prolonged by periods of 20 days (para. 3), the maximum duration is, however, limited to two months (para. 4). In case of a prolongation of the controls, the criteria set out in Article 23a and the procedural provision of Articles 24 (4) and (5) apply mutatis mutandis. 9 In September of 2015, several Member States, including Germany and Austia, reintroduced temporary border controls based on the extraordinary influx of persons seeking international protection. This spontaneous and uncontrolled inflow was considered a serious threat to the internal security and public policy and the temporary reintroduction of border controls was intended to provide appropriate assistance to the arriving persons including more structured procedures, especially in terms of registration. In its opinion, the Commission recalled that migratory flows cannot per se justify the reintroduction of checks at internal borders, but considered the measures nevertheless justified, necessary and proportional due to the sheer number of persons entering theses Member States.115 8

3. Temporary internal border controls in the case of exceptional circumstances (Articles. 26, 26a) 10

If a Member State is seriously neglecting its obligation of external border controls, the measures recommended by the Commission pursuant to Article 19a have remained without effect, and the overall functioning of the area without internal border control is put at risk, the Commission may recommend that the Council, as a last resort, proposes controls at the internal borders for a period of up to six months. The controls may be prolonged for three additional six month periods, if the risk persists (Article 26). The criteria for the reintroduction of controls pursuant to Art. 26 are found in Article 26a. When deciding on the reintroduction, the Council has to assess the necessity and proportionality of such measures, as well as alternative measures like the assistance by Union bodies and agencies such as Europol, the impact of the serious deficiencies in external border controls on the public policy and internal security of Member States, and the likely impact of the internal border controls on the free movement of persons.116

114

See in more detail Pascouau, The Schengen Governance Package, p. 4. Comission Opinion of 23.10.2015 on the necessity and proportionality of the controls at internal borders reintroduced by Germany and Austria pursuant to article 24(4) of Regulation no 562/2006, C(2015) 7100 final. 116 See Pascouau, The Schengen Governance Package, p. 6–7; Peers,The Future of Schengen, p. 44–45. 115

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Part B II

IV. Judicial control and the rights of Union citizens and their family members Since the entry into force of the Treaty of Lisbon on 1 December 2009, the lawfulness 11 of such measures can be examined by the Court of Justice. The former restriction on the Court’s jurisdiction in Article 68(2) EC Treaty117 had not allowed such an examination by the Court. It has to be stressed that even the temporary reintroduction of internal border checks 12 pursuant to Article 23 et seqq. does not affect the right of free movement of Union citizens and their family members, which already results from Article 3 Regulation 562/2006. A refusal of entry to such persons must therefore comply with the rather strict requirements of EU Law in general and with Directive 2004/38 in particular.

TITLE IV FINAL PROVISIONS Article 32 Amendments to the Annexes The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning amendments to Annexes III, IV and VIII.

Article 33 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 12(5) and Article 32 shall be conferred on the Commission for an indeterminate period of time from 19 July 2013. 3. The delegation of powers referred to in Article 12(5) and Article 32 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 12(5) and Article 32 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. 117

See the comments on judicial protection above, Article 1 MN 19–20.

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Article 33a Committee procedure 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers(27). 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/ 2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. 3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/ 2011, in conjunction with Article 5 thereof, shall apply.

Article 34 Notifications 1. Member States shall notify the Commission of: (a) the list of residence permits, distinguishing between those covered by point (a) of point 15 of Article 2 and those covered by point (b) of point 15 of Article 2 and accompanied by a specimen for permits covered by point (b) of point 15 of Article 2. Residence cards issued in accordance with Directive 2004/38/EC shall be specifically highlighted as such and specimens shall be provided for those residence cards which have not been issued in accordance with the uniform format laid down by Regulation (EC) No 1030/2002; (b) the list of their border crossing points; (c) the reference amounts required for the crossing of their external borders fixed annually by the national authorities; (d) the list of national services responsible for border control; (e) the specimen of model cards issued by Foreign Ministries; (ea) the exceptions to the rules regarding the crossing of the external borders referred to in point (a) of Article 4(2); (eb) the statistics referred to in Article 10(3). 2. The Commission shall make the information notified in conformity with paragraph 1 available to the Member States and the public through publication in the Official Journal of the European Union, C Series, and by any other appropriate means.

Article 35 Local border traffic This Regulation shall be without prejudice to Community rules on local border traffic and to existing bilateral agreements on local border traffic.

(27)

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OJ L 55/13 (2011).

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Art. 32–40

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Article 36 Ceuta and Melilla The provisions of this Regulation shall not affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Declaration by the Kingdom of Spain on the cities of Ceuta and Melilla in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985(28).

Article 37 Notification of information by the Member States The Member States shall notify the Commission of national provisions relating to Article 21(c) and (d), the penalties as referred to in Article 4(3) and the bilateral agreements authorised by this Regulation. Subsequent changes to those provisions shall be notified within five working days. The information notified by the Member States shall be published in the Official Journal of the European Union, C Series.

Article 37a Evaluation mechanism 1. In accordance with the Treaty on the Functioning of the European Union and the Treaty on European Union and without prejudice to their provisions on infringement procedures, the implementation by each Member State of this Regulation shall be evaluated through an evaluation mechanism. 2. The rules on the evaluation mechanism are specified in Regulation (EU) No 1053/2013. In accordance with that evaluation mechanism, the Member States and the Commission are, jointly, to conduct regular, objective and impartial evaluations in order to verify the correct application of this Regulation and the Commission is to coordinate the evaluations in close cooperation with the Member States. Under that mechanism, every Member State is evaluated at least every five years by a small team consisting of Commission representatives and of experts designated by the Member States. Evaluations may consist of announced or unannounced on-site visits at external or internal borders. In accordance with that evaluation mechanism, the Commission is responsible for adopting the multiannual and annual evaluation programmes and the evaluation reports. 3. In the case of possible deficiencies recommendations for remedial action may be addressed to the Member States concerned. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report adopted by the Commission in accordance with Article 14 of Regulation (EU) No 1053/2013, Articles 19a and 26 of this Regulation shall apply. (28)

OJ L 239, 22.9.2000, p. 73.

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4. The European Parliament and the Council shall be informed at all stages of the evaluation and be transmitted all the relevant documents, in accordance with the rules on classified documents. 5. The European Parliament shall be immediately and fully informed of any proposal to amend or to replace the rules laid down in Regulation (EU) No 1053/2013.

Article 38 Report on the application of Title III The Commission shall submit to the European Parliament and the Council by 13 October 2009a report on the application of Title III. The Commission shall pay particular attention to any difficulties arising from the reintroduction of border control at internal borders. Where appropriate, it shall present proposals aimed at resolving such difficulties.

Article 39 Repeals 1. Articles 2 to 8 of the Convention implementing the Schengen Agreement of 14 June 1985 shall be repealed with effect from 13 October 2006. 2. The following shall be repealed with effect from the date referred to in paragraph 1: (a) the Common Manual, including its annexes; (b) the decisions of the Schengen Executive Committee of 26 April 1994 (SCH/Comex (94) 1, rev 2), 22 December 1994 (SCH/Com-ex (94)17, rev. 4) and 20 December 1995 (SCH/Com-ex (95) 20, rev. 2); (c) Annex 7 to the Common Consular Instructions; (d) Council Regulation (EC) No 790/2001 of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance(29); (e) Council Decision 2004/581/EC of 29 April 2004 determining the minimum indications to be used on signs at external border crossing points(30); (f) Council Decision 2004/574/EC of 29 April 2004 amending the Common Manual(31); (g) Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the Common Manual to this end(32). 3. References to the Articles deleted and instruments repealed shall be construed as references to this Regulation.

(29) OJ p. 45). (30) OJ (31) OJ (32) OJ

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L 116, 26.4.2001, p. 5. Regulation amended by Decision 2004/927/EC (OJ L 396, 31.12.2004, L 261, 6.8.2004, p. 119. L 261, 6.8.2004, p. 36. L 369, 16.12.2004, p. 5.

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Annex I

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Article 40 Entry into force This Regulation shall enter into force on 13 October 2006. However, Article 34 shall enter into force on the day after its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community. Title IV (Article 32–40) consists of the final provisions. Article 32 provides the procedure for the revision of annexes III, IV and VIII, and delegates this power to the Commission. The other annexes as well as other amendments of the regulation have to be made by following the regular legislative procedure. Pursuant to Article 33, the power to adopt delegated acts is conferred on the Commission. In certain cases, the Commission is assisted by a committee and the rules of Reg. 182/2011118 apply (Article 33a). Article 34 imposes notification obligations on the Member States with respect to the seven points listed in Article 34(1). The notified information is to be published in the Official Journal, C series or by any other appropriate means119. Article 37 contains a further notification obligation of the Member States, and Article 38 required the Commission to submit a report on the application of Title III by 13 October 2009. With the entry into force of Regulation 1051/2013120 in November 2013, a new evaluation and monitoring mechanism was introduced, giving the Commission a more important role to play (Article 37a). The purpose, scope and functioning of this mechanism is specified in detail in Council Regulation (EU) No. 1053/2013121. Every Member State is evaluated at least every five years with regard to the implementation of Regulation 562/2006. The Commission is now jointly responsible with the Member States for the evaluation and the monitoring, and shall establish annual as well as multiannual evaluation programmes, submit a yearly FRONTEX risk analysis and conduct on-site visits at external or internal borders. The Member States and the Commission may both draft recommendations to remedy any problems and deficiencies identified during the evaluations.

ANNEX I Supporting documents to verify the fulfilment of entry conditions The documentary evidence referred to in Article 5(2) may include the following: (a) for business trips: (i) an invitation from a firm or an authority to attend meetings, conferences or events connected with trade, industry or work; 118 Regulation (EU) 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ 2011 L 55/13. 119 All notifications can also be found on the website of the Directorate-General for Migration and Home Affairs http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed 24 February 2015]. 120 OJ 2013 L 295/1. 121 OJ 2013 L 295/27; see also Pascouau, The Schengen Governance Package, p. 9–11.

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(ii) other documents which show the existence of trade relations or relations for work purposes; (iii) entry tickets for fairs and congresses if attending one; (b) for journeys undertaken for the purposes of study or other types of training: (i) a certificate of enrolment at a teaching institute for the purposes of attending vocational or theoretical courses in the framework of basic and further training; (ii) student cards or certificates for the courses attended; (c) for journeys undertaken for the purposes of tourism or for private reasons: (i) supporting documents as regards lodging: – an invitation from the host if staying with one, – a supporting document from the establishment providing lodging or any other appropriate document indicating the accommodation envisaged; (ii) supporting documents as regards the itinerary: confirmation of the booking of an organised trip or any other appropriate document indicating the envisaged travel plans; (iii) supporting documents as regards return: a return or round-trip ticket; (d) for journeys undertaken for political, scientific, cultural, sports or religious events or other reasons: invitations, entry tickets, enrolments or programmes stating wherever possible the name of the host organisation and the length of stay or any other appropriate document indicating the purpose of the visit.

ANNEX II Registration of information […]

ANNEX III Model signs indicating lanes at border crossing points […]

ANNEX IV Affixing stamps […]

ANNEX V PART A Procedures for refusing entry at the border 1. When refusing entry, the competent border guard shall: (a) fill in the standard form for refusing entry, as shown in Part B. The third-country national concerned shall sign the form and shall be given a copy of the signed

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Part B II

form. Where the third-country national refuses to sign, the border guard shall indicate this refusal in the form under the section ‘comments’; (b) affix an entry stamp on the passport, cancelled by a cross in indelible black ink, and write opposite it on the right-hand side, also in indelible ink, the letter(s) corresponding to the reason(s) for refusing entry, the list of which is given on the abovementioned standard form for refusing entry; (c) annul or revoke the visas, as appropriate, in accordance with the conditions laid down in Article 34 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community code on visas (Visa Code); (d) record every refusal of entry in a register or on a list stating the identity and nationality of the third-country national concerned, the references of the document authorising the third-country national to cross the border and the reason for, and date of, refusal of entry; 3. If a third-country national who has been refused entry is brought to the border by a carrier, the authority responsible locally shall: (a) order the carrier to take charge of the third-country national and transport him or her without delay to the third country from which he or she was brought, to the third country which issued the document authorising him or her to cross the border, or to any other third country where he or she is guaranteed admittance, or to find means of onward transportation in accordance with Article 26 of the Schengen Convention and Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985; (b) pending onward transportation, take appropriate measures, in compliance with national law and having regard to local circumstances, to prevent third-country nationals who have been refused entry from entering illegally; 4. If there are grounds both for refusing entry to a third-country national and arresting him or her, the border guard shall contact the authorities responsible to decide on the action to be taken in accordance with national law. PART B Standard form for refusal of entry at the border

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Part B II Annex VI

Entry and Border Controls

ANNEX VI Specific rules for the various types of border and the various means of transport used for crossing the Member States’ external borders 1. Land borders 1.1. Checks on road traffic 1.1.1. To ensure effective checks on persons, while ensuring the safety and smooth flow of road traffic, movements at border crossing points shall be regulated in an 112

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Part B II

appropriate manner. Where necessary, Member States may conclude bilateral agreements to channel and block traffic. They shall inform the Commission thereof pursuant to Article 37. 1.1.2. At land borders, Member States may, where they deem appropriate and if circumstances allow, install or operate separate lanes at certain border crossing points, in accordance with Article 9. Separate lanes may be dispensed with at any time by the Member States’ competent authorities, in exceptional circumstances and where traffic and infrastructure conditions so require. Member States may cooperate with neighbouring countries with a view to the installation of separate lanes at external border crossing points. 1.1.3. As a general rule, persons travelling in vehicles may remain inside them during checks. However, if circumstances so require, persons may be requested to alight from their vehicles. Thorough checks will be carried out, if local circumstances allow, in areas designated for that purpose. In the interests of staff safety, checks will be carried out, where possible, by two border guards. 1.1.4. Shared border crossing points […] 1.2. Checks on rail traffic 1.2.1. Checks shall be carried out both on train passengers and on railway staff on trains crossing external borders, including those on goods trains or empty trains. Member States may conclude bilateral or multilateral agreements on how to conduct those checks respecting the principles set out in point 1.1.4. Those checks shall be carried out in one of the following ways: – in the first station of arrival or last station of departure on the territory of a Member State, – on board the train, during transit between the last station of departure in a third country and the first station of arrival on the territory of a Member State or vice versa, – in the last station of departure or the first station of arrival on the territory of a third country. 1.2.2. In addition, in order to facilitate rail traffic flows of high-speed passenger trains, the Member States on the itinerary of these trains from third countries may also decide, by common agreement with third countries concerned respecting the principles set out in point 1.1.4., to carry out entry checks on persons on trains from third countries in either one of the following ways: – in the stations in a third country where persons board the train, – in the stations where persons disembark within the territory of the Member States, – on board the train during transit between stations on the territory of a third country and stations on the territory of the Member States, provided that the persons stay on board the train. 1.2.3. With respect to high-speed trains from third countries making several stops in the territory of the Member States, if the rail transport carrier is in a position to board passengers exclusively for the remaining part of the journey within the territory of the Member States, such passengers shall be subject to entry checks either on the train or at the station of destination except where checks have been carried out pursuant to points 1.2.1 or 1.2.2 first indent. Persons who wish to take the train exclusively for the remaining part of the journey within the territory of the Member States shall receive clear notification prior to the train’s departure that they will be subject to entry checks during the journey or at the station of destination. Epiney/Egbuna-Joss

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1.2.4. When travelling in the opposite direction, the persons on board the train shall be subject to exit checks under similar arrangements. 1.2.5. The border guard may order the cavities of carriages to be inspected if necessary with the assistance of the train inspector, to ensure that persons or objects subject to border checks are not concealed in them. 1.2.6. Where there are reasons to believe that persons who have been reported or are suspected of having committed an offence, or third-country nationals intending to enter illegally, are hiding on a train, the border guard, if he or she cannot act in accordance with his national provisions, shall notify the Member States towards or within whose territory the train is moving. 2. Air borders 2.1. Procedures for checks at international airports 2.1.1. The competent authorities of the Member States shall ensure that the airport operator takes the requisite measures to physically separate the flows of passengers on internal flights from the flows of passengers on other flights. Appropriate infrastructures shall be set in place at all international airports to that end. 2.1.2. The place where border checks are carried out shall be determined in accordance with the following procedure: (a) passengers on a flight from a third country who board an internal flight shall be subject to an entry check at the airport of arrival of the flight from a third country. Passengers on an internal flight who board a flight for a third country (transfer passengers) shall be subject to an exit check at the airport of departure of the latter flight; (b) for flights from or to third countries with no transfer passengers and flights making more than one stop-over at the airports of the Member States where there is no change of aircraft: (i) passengers on flights from or to third countries where there is no prior or subsequent transfer within the territory of the Member States shall be subject to an entry check at the airport of entry and an exit check at the airport of exit; (ii) passengers on flights from or to third countries with more than one stopover on the territory of the Member States where there is no change of aircraft (transit passengers), and provided that passengers cannot board the aircraft for the leg situated within the territory of the Member States, shall be subject to an entry check at the airport of arrival and an exit check at the airport of departure; (iii) where an airline may, for flights from third countries with more than one stop-over within the territory of the Member States, board passengers only for the remaining leg within that territory, passengers shall be subject to an exit check at the airport of departure and an entry check at the airport of arrival. Checks on passengers who, during those stop-overs, are already on board the aircraft and have not boarded in the territory of the Member States shall be carried out in accordance with point (b)(ii). The reverse procedure shall apply to that category of flights where the country of destination is a third country. 2.1.3. Border checks will normally not be carried out on the aircraft or at the gate, unless it is justified on the basis of an assessment of the risks related to internal security and illegal immigration. In order to ensure that, at the airports designated as border crossing points, persons are checked in accordance with the rules set out in Articles 6 to 13, Member States shall ensure that the airport authorities take the requisite measures to channel passenger traffic to facilities reserved for checks. 114

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Annex VIII

Part B II

Member States shall ensure that the airport operator takes the necessary measures to prevent unauthorised persons entering and leaving the reserved areas, for example the transit area. Checks will normally not be carried out in the transit area, unless it is justified on the basis of an assessment of the risks related to internal security and illegal immigration; in particular checks in this area may be carried out on persons subject to an airport transit visa in order to check that they are in possession of such a visa. 2.1.4. Where, in cases of force majeure or imminent danger or on the instructions of the authorities, an aircraft on a flight from a third country has to land on a landing ground which is not a border crossing point, that aircraft may continue its flight only after authorisation from the border guards and from customs. The same shall apply where an aircraft on a flight from a third country lands without permission. In any event, Articles 6 to 13 shall apply to checks on persons on those aircraft. 2.2. Procedures for checks in aerodromes […] 2.3. Checks on persons on private flights […] 3. Sea borders […] 4. Inland waterways shipping […]

ANNEX VII Special rules for certain categories of persons 1. Heads of State […] 2. Pilots of aircraft and other crew members […] 3. Seamen […] 4. Holders of diplomatic, official or service passports and members of international organisations […] 5. Cross-border workers […] 6. Minors […] 7. Rescue services, police, fire brigades and border guards […] 8. Offshore workers […]

ANNEX VIII […]

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III. Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) Official Journal L 243, 15.9.2009, p. 1–58 Selected Bibliography: Den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of NonRefoulement under the European Convention on Human Rights’, EJML 10 (2008), p. 277; den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2012, Annual Report 2012; Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2013, Annual Report 2013; Goodwin-Gill/McAdam, The Refugee in International Law, 3rd Edition (OUP, 2007); Groenendijk/Guild, ‘Visa Policy of Member States and the EU towards Turkish Nationals after Soysal’, Economic Development Foundation Publications, No 232 (2010), available at: http://cmr.jur.ru.nl/cmr/docs/Soysal.Report.pdf [last accessed 06 April 2015]; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Jensen, ‘Humanitarian Visas: Option or Obligations?’, CEPS Paper in Liberty and Security No 68 (2014), available at: http://www.ceps.eu/book/ humanitarian-visas-option-or-obligation [last accessed 06 April 2015]; Lauterpacht/Bethlehem, ‘The scope and content of the principle of non-refoulement’, in: Feller/Tu¨rk/Nicholson (eds), Refugee Protection in International Law (CUP, 2003), p. 87; Meloni, Visa Policy within the European Union Structure (Springer, 2006); Meloni, ‘The Community Code on Visas: Harmonization at last?’, EL Rev 34 (2009), p. 671; Moreno Lax, ‘Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection’, EJML 10 (2008), p. 315; Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, IJRL 17 (2005) p. 542; Peers, ‘The Visa Code’, in: Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary), 2nd Revised Edition, Volume 1: Visas and Border Controls (Brill Nijhoff, 2012); Peers, Update: amending the EU’s visa list legislation, Statewatch (2012), available at: http://www.statewatch.org/analyses/no-208-visa-lists.pdf [last accessed 06 April 2015].

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(a) and (b)(ii) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: (1) In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and immigration. (2) Pursuant to Article 62(2) of the Treaty, measures on the crossing of the external borders of the Member States shall establish rules on visas for intended stays of no more than three months, including the procedures and conditions for issuing visas by Member States. (3) As regards visa policy, the establishment of a ‘common corpus’ of legislation, particularly via the consolidation and development of the acquis (the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985(2) and the Common Consular Instructions(3), is one of the fundamental components of ‘fur(1) Opinion of the European Parliament of 2 April 2009 (not yet published in the Official Journal) and Council Decision of 25 June 2009. (2) OJ L 239, 22.9.2000, p. 19. (3) OJ C 326, 22.12.2005, p. 1.

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ther development of the common visa policy as part of a multi-layer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions’, as defined in the Hague Programme: strengthening freedom, security and justice in the European Union(4). (4) Member States should be present or represented for visa purposes in all third countries whose nationals are subject to visa requirements. Member States lacking their own consulate in a given third country or in a certain part of a given third country should endeavour to conclude representation arrangements in order to avoid a disproportionate effort on the part of visa applicants to have access to consulates. (5) It is necessary to set out rules on the transit through international areas of airports in order to combat illegal immigration. Thus nationals from a common list of third countries should be required to hold airport transit visas. Nevertheless, in urgent cases of mass influx of illegal immigrants, Member States should be allowed to impose such a requirement on nationals of third countries other than those listed in the common list. Member States’ individual decisions should be reviewed on an annual basis. (6) The reception arrangements for applicants should be made with due respect for human dignity. Processing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued. (7) Member States should ensure that the quality of the service offered to the public is of a high standard and follows good administrative practices. They should allocate appropriate numbers of trained staff as well as sufficient resources in order to facilitate as much as possible the visa application process. Member States should ensure that a ‘one-stop’ principle is applied to all applicants. (8) Provided that certain conditions are fulfilled, multiple-entry visas should be issued in order to lessen the administrative burden of Member States’ consulates and to facilitate smooth travel for frequent or regular travellers. Applicants known to the consulate for their integrity and reliability should as far as possible benefit from a simplified procedure. (9) Because of the registration of biometric identifiers in the Visa Information System (VIS) as established by Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation)(5), the appearance of the applicant in person – at least for the first application – should be one of the basic requirements for the application for a visa. (10) In order to facilitate the visa application procedure of any subsequent application, it should be possible to copy fingerprints from the first entry into the VIS within a period of 59 months. Once this period of time has elapsed, the fingerprints should be collected again. (11) Any document, data or biometric identifier received by a Member State in the course of the visa application process shall be considered a consular document under the Vienna Convention on Consular Relations of 24 April 1963 and shall be treated in an appropriate manner. (12) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(6) applies to the Member States with regard to the processing of personal data pursuant to this Regulation. (4)

OJ C 53, 3.3.2005, p. 1. OJ L 218, 13.8.2008, p. 60. (6) OJ L 281, 23.11.1995, p. 31. (5)

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(13) In order to facilitate the procedure, several forms of cooperation should be envisaged, such as limited representation, co-location, common application centres, recourse to honorary consuls and cooperation with external service providers, taking into account in particular data protection requirements set out in Directive 95/46/EC. Member States should, in accordance with the conditions laid down in this Regulation, determine the type of organisational structure which they will use in each third country. (14) It is necessary to make provision for situations in which a Member State decides to cooperate with an external service provider for the collection of applications. Such a decision may be taken if, in particular circumstances or for reasons relating to the local situation, cooperation with other Member States in the form of representation, limited representation, co-location or a Common Application Centre proves not to be appropriate for the Member State concerned. Such arrangements should be established in compliance with the general principles for issuing visas and with the data protection requirements set out in Directive 95/46/EC. In addition, the need to avoid visa shopping should be taken into consideration when establishing and implementing such arrangements. (15) Where a Member State has decided to cooperate with an external service provider, it should maintain the possibility for all applicants to lodge applications directly at its diplomatic missions or consular posts. (16) A Member State should cooperate with an external service provider on the basis of a legal instrument which should contain provisions on its exact responsibilities, on direct and total access to its premises, information for applicants, confidentiality and on the circumstances, conditions and procedures for suspending or terminating the cooperation. (17) This Regulation, by allowing Member States to cooperate with external service providers for the collection of applications while establishing the ‘one-stop’ principle for the lodging of applications, creates a derogation from the general rule that an applicant must appear in person at a diplomatic mission or consular post. This is without prejudice to the possibility of calling the applicant for a personal interview. (18) Local Schengen cooperation is crucial for the harmonised application of the common visa policy and for proper assessment of migratory and/or security risks. Given the differences in local circumstances, the operational application of particular legislative provisions should be assessed among Member States’ diplomatic missions and consular posts in individual locations in order to ensure a harmonised application of the legislative provisions to prevent visa shopping and different treatment of visa applicants. (19) Statistical data are an important means of monitoring migratory movements and can serve as an efficient management tool. Therefore, such data should be compiled regularly in a common format. (20) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7). (21) In particular, the Commission should be empowered to adopt amendments to the Annexes to this Regulation. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. (7)

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(22) In order to ensure the harmonised application of this Regulation at operational level, instructions should be drawn up on the practice and procedures to be followed by Member States when processing visa applications. (23) A common Schengen visa Internet site is to be established to improve the visibility and a uniform image of the common visa policy. Such a site will serve as a means to provide the general public with all relevant information in relation to the application for a visa. (24) Appropriate measures should be adopted for the monitoring and evaluation of this Regulation. (25) The VIS Regulation and Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code(8) should be amended in order to take account of the provisions of this Regulation. (26) Bilateral agreements concluded between the Community and third countries aiming at facilitating the processing of applications for visas may derogate from the provisions of this Regulation. (27) When a Member State hosts the Olympic Games and the Paralympic Games, a particular scheme facilitating the issuing of visas to members of the Olympic family should apply. (28) Since the objective of this Regulation, namely the establishment of the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (29) This Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. (30) The conditions governing entry into the territory of the Member States or the issue of visas do not affect the rules currently governing recognition of the validity of travel documents. (31) In accordance with Articles 1 and 2 of the Protocol on the Position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds on the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of that Protocol, decide within a period of six months after the date of adoption of this Regulation whether it will implement it in its national law. (32) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis(9) which fall (8) (9)

OJ L 105, 13.4.2006, p. 1. OJ L 176, 10.7.1999, p. 36.

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within the area referred to in Article 1, point B of Council Decision 1999/437/EC(10) on certain arrangements for the application of that Agreement. (33) An arrangement should be made to allow representatives of Iceland and Norway to be associated with the work of committees assisting the Commission in the exercise of its implementing powers under this Regulation. Such an arrangement has been contemplated in the Exchange of Letters between the Council of the European Union and Iceland and Norway concerning committees which assist the European Commission in the exercise of its executive powers(11), annexed to the abovementioned Agreement. The Commission has submitted to the Council a draft recommendation with a view to negotiating this arrangement. (34) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(12), which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC(13) on the conclusion of that Agreement. (35) As regards Liechtenstein, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Protocol signed between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement concluded between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC(14) on the signing of that Protocol. (36) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(15). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (37) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(16). Ireland is therefore not taking part in the adoption of the Regulation and is not bound by it or subject to its application. (38) This Regulation, with the exception of Article 3, constitutes provisions building on the Schengen acquis or otherwise relating to it within the meaning of Article 3(2) of the 2003 Act of Accession and within the meaning of Article 4(2) of the 2005 Act of Accession, HAVE ADOPTED THIS REGULATION: (10)

OJ OJ (12) OJ (13) OJ (14) OJ (15) OJ (16) OJ (11)

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L 176, 10.7.1999, p. 31. L 176, 10.7.1999, p. 53. L 53, 27.2.2008, p. 52. L 53, 27.2.2008, p. 1. L 83, 26.3.2008, p. 3. L 131, 1.6.2000, p. 43. L 64, 7.3.2002, p. 20.

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TITLE I GENERAL PROVISIONS Article 1 Objective and scope 1. This Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days in any 180-day period. 2. The provisions of this Regulation shall apply to any third-country national who must be in possession of a visa when crossing the external borders of the Member States pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement(17), without prejudice to: (a) the rights of free movement enjoyed by third-country nationals who are family members of citizens of the Union; (b) the equivalent rights enjoyed by third-country nationals and their family members, who, under agreements between the Community and its Member States, on the one hand, and these third countries, on the other, enjoy rights of free movement equivalent to those of Union citizens and members of their families. 3. This Regulation also lists the third countries whose nationals are required to hold an airport transit visa by way of exception from the principle of free transit laid down in Annex 9 to the Chicago Convention on International Civil Aviation, and establishes the procedures and conditions for issuing visas for the purpose of transit through the international transit areas of Member States’ airports. Content I. II. III. IV.

Drafting history and subject-matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Amendments and proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Territorial application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Length of stays and types of visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Third country nationals covered by the Visa Regulation (EC) No 539/ 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Third country nationals covered by the Free Movement Directive 2004/38/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. Third country nationals covered by Visa Facilitation Agreements . . . . . 10 5. Compliance with data protection and human rights instruments. . . . . . 11 6. List of nationalities subject to airport transit visas. . . . . . . . . . . . . . . . . . . . . . . . 12

I. Drafting history and subject-matter Article 1 establishes the objective and scope of the Regulation. The Regulation 1 establishes the procedures and conditions for issuing visas for transit through or intended stays in the Member States not exceeding 90 days in any 180-day period. The Regulation applies to any third countries national who under the Visa Regulation (EC) No 539/2001 requires a visa to cross the external borders of the Member States. It (17)

OJ L 81, 21.3.2001, p. 1.

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further establishes the list of third countries whose nationals are required to hold airport transit visas and the procedures and conditions for issuing such visas. 2 Cooperation on visa policy between the Member States of the EU started in the 1980s within the frameworks of the ‘Trevi’ Group and the 1985 Schengen Agreement. It continued in the 1990s within the framework of the 1990 Schengen Implementing Convention, to which all Member States acceded by 1996 except for the United Kingdom and Ireland. The Schengen Implementing Convention established, inter alia, the rules on a ‘uniform’ visa, i. e. a visa valid for the territories of all Member States, and on the conditions and procedures for the issuing of such visas by the Member States. The Schengen Executive Committee, set up under the Convention, adopted a number of decisions establishing detailed rules on visa issuing and eventually the Common Consular Instructions which collated such decisions and the relevant Convention articles in one document addressed to the Member States’ national consular authorities. The Common Consular Instructions were published for the first time in 1999. They may be considered the precursor to the Regulation.1 In parallel to these developments, the Treaty of Maastricht, agreed in 1992, introduced Article 100c EC conferring competence to the European Community to adopt the list of countries whose nationals required a visa to cross the external borders of the Member States and a uniform format for visas.2 The procedures and conditions for issuing uniform visas, on the other hand, became the subject of intergovernmental cooperation under the newly established Third Pillar of the European Union. However, no progress was achieved on this front.3 Under the Third Pillar, Joint Action 96/197/ JHA on airport transit visas was adopted listing the nationalities requiring airport transit visas.4 This gave rise to inter-institutional conflict regarding the division of competence for visa policy between the Community and the Third Pillar.5 The Treaty of Amsterdam agreed in 1997 established Community competence for visa, asylum and immigration policies, provided for the incorporation of the Schengen acquis into the EU legal order and accommodated the special positions of the United Kingdom, Ireland and Denmark through protocols attached to the Treaties.6 It introduced four legal bases for visa policy including Article 62(2)(b)(ii) EC on the conditions and procedures for issuing visas which envisaged, after a five year transitional period, i. e. after May 2004, the application of the co-decision procedure to this area. 3 The Regulation was adopted in July 2009 under Article 62(2)(b)(ii) EC, and Article 62(2)(a)(c)EC on standards and procedures for carrying out checks at the external borders, after more than two years of negotiations. It entered into force on 5 April 2010 except for the provisions on rights of appeal for visa refusal decisions which entered into force on 5 April 2011 (see below Article 58). The Regulation was adopted to consolidate and develop the acquis on visa issuing and in response to the European Council’s call ‘for further development of the common visa policy as part of a multilayer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local 1

For an overview of the history of cooperation on visas, see Meloni, Visa Policy, p. 43 et seqq. Regulation (EC) No 2317/95 (OJ 1995 L 234/1) on the visa list was adopted in 1995 and soon replaced by Regulation (EC) No 574/1999 (OJ 1999 L 72/2) following ECJ, Parliament v Council, C-392/95, EU:C:1997:289. Regulation (EC) No 1683/95 (OJ 1995 L 164/1) on the visa format was also adopted in 1995. 3 The proposed Draft External Frontier Convention was never adopted. See Meloni, Visa Policy, p. 75 et seqq. 4 OJ 1996 L 63/8. 5 See ECJ, Commission v Council, C-170/96, EU:C:1998:219. 6 For an overview, see Meloni, Visa Policy, p. 85 et seqq. 2

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consular missions’ (see above Recital 3). The Regulation replaced provisions on visa issuing which were previously scattered in various instruments, some of which of unclear legal nature, such as articles of the Schengen Implementing Convention, the Common Consular Instructions, Schengen Executive Committee Decisions, the Joint Action on Airport Transit Visas and various EC Regulations (see below Article 56). The Regulation clarified the content and legally binding nature of some of the pre-existing rules on visa issuing with a view to achieving further harmonization of the Member States’ practices to ensure the equal treatment of applicants and to avoid visa shopping. It introduced a long awaited system of procedural guarantees for visa applicants in the form of a right of appeal against visa refusal decisions and an accompanying right to be notified of the reasons for visa refusal (see below Article 32(2) and (3)). It also introduced rules on biometric data collection from visa applicants relating to the newly established Visa Identification System (VIS) (see below Article 13).7 Operational instructions have been adopted under Article 51 of the Regulation in the form of two Visa Handbooks respectively on processing visa applications,8 and on visa sections and local Schengen cooperation,9 which are non-legally binding. Notwithstanding the significant simplification brought about by the Regulation, visa issuing remains a complex matter as the Regulation continues to interlock with a number of other legal instruments.10 A number of new proposals are also relevant for visa issuing such as those on the establishment of an exit/entry system and a registered traveller programme.11 To fully comprehend the Regulation it is therefore necessary to consider it within the wider context of the EU external border control system and even wider EU ‘area of freedom, security and justice’, which is fast developing. Furthermore, while the Regulation has provided for further harmonization of the Member States’ visa issuing practices, it appears that there are still variations resulting from the soft law nature or vagueness of some of the rules.

II. Amendments and proposals for reform Since its entry into force the Regulation has been substantially amended twice.12 In 4 April 2014, following an evaluation of its implementation,13 the Commission proposed to recast and amend the Regulation.14 A welcomed political shift is that the Commission

7

See the Visa Identification System (VIS) Regulation (EC) No 767/2008 (OJ 2008 L 218/60). Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final. 9 Commission Decision, C(2010) 367 final. 10 These include the Visa Regulation (EC) No 539/2001, the Schengen Borders Code Regulation (EC) No 562/2006, the Schengen Information System (SIS) Regulation (EC) No 1987/2006 (OJ 2006 L 381/4), the Visa Information System (VIS) Regulation (EC) 767/2008 (OJ 2008 L 218/60), the Local Border Traffic Regulation (EC) No 1931/2006 (OJ 2006 L 405/1), the Facilitated Travel Document Regulation (EC) No 693/2003 (OJ 2003 L 99/8), the Free Movement Directive 2004/38/EC, the Family Reunification Directive 2003/86/EC and visa facilitation agreements between the EU and third countries, which are listed on the Commission website, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]. 11 Commission Proposal, COM(2013) 95; Commission Proposal, COM(2013) 97. 12 By Regulation (EU) No 154/2012 (OJ 2012 L 58/3) with regard to exceptions to airport transit visa requirements, and by Regulation (EU) No 610/2013 (OJ 2013 L 182/1) with regard to the length of stay under a visa. 13 Commission Staff Working Document, SWD(2014) 101 final. 14 Commission Proposal, COM(2014) 164 final. 8

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proposal declares to take ‘into account the increased political emphasis given to the economic impact of visa policy upon the wider European Union economy’.15 The Commission proposal will be considered in relation to the individual articles discussed below. In general, the proposal aims to address the shortcomings of the current rules on visa issuing as experienced by visa applicants relating to the lengthy, costly and cumbersome procedures involved. It does so by improving the rules on visa issuing in various way and by introducing amendments to ensure that the visa facilitations envisaged by the Regulation are actually applied by consulates. In this regard, the proposal introduces the new notion of ‘VIS registered regular traveller’ (i. e. a visa applicant registered in the VIS who has obtained two visas within 12 months prior to his application), who is entitled if certain conditions are fulfilled to a set of visa facilitations (see below Article 14 MN 5; Article 21 MN 4; Article 24 MN 2).16 This proposed amendment has however encountered opposition in the Council, particularly with regard to the ‘automaticity’ of issuing visas to this category.17 The proposal also addresses the issue of insufficient geographical consular coverage, particularly through providing for mandatory representation (see below Article 5 MN 2; Article 17 MN 2).18 A further aim of the proposal is that of facilitating family contacts. Accordingly, the proposal introduces a set of visa facilitations for third country nationals who are ‘close relatives’ of EU citizens but are outside the scope of the Free Movement Directive 2004/ 38/EC (see below Article 9 MN 4; Article 14 MN 4; Article 16 MN 1; Article 23 MN 1).19 These are third country nationals who are close relatives of EU citizens residing in the Member States of which they are nationals, and third country nationals who are close relatives of EU citizens living in a third country and who want to visit together with the EU citizens the Member States of which the EU citizens are nationals. With the exception of the exemption from airport transit visas,20 as a matter of equal treatment of EU citizens, the visa facilitations granted by the proposal to this new category are generally the same as those that the proposal grants to third country national family members of EU citizens covered by the Free Movement Directive 2004/ 38/EC (see below MN 9). However, the new category of beneficiaries is more restrictive including only ‘close relatives’, defined as spouse, children, parents, persons exercising parental authority, grandparents and grandchildren.21 In relation to third country national family members covered by the Free Movement Directive 2004/38/EC, the proposal, which attempts to incorporate the rules in the Directive (see below MN 9),22 extends to cover all family members envisaged by Article 3 of the Directive, that is to say both ‘core’ and ‘extended’, with one exception (see below MN 9).23 This part of the proposal has however encountered criticism and opposition in the Council at working party level on the ground that the definition of ‘close relative’ is too broad and that ‘this category gave rise too often to illegal immigration’.24 15 See Commission Proposal, COM(2014) 164 final, p. 2. See also the new criteria for the determination of the nationalities subject to visas in Article 1 of the Visa Regulation (EC) No 539/2001 as amended by Regulation (EU) No 509/2014 (OJ 2014 L 149/67). See also Commission Communication, COM(2012) 649 final. 16 Draft Articles 2(9), 13(2) and (6), 18(2) and (3) and 21(3) and (4), Commission Proposal, COM(2014) 164 final. 17 Council doc. 6093/15 of 13 February 2015, p. 3. 18 Draft Articles 5(2) and 38(3), Commission Proposal, COM(2014) 164 final. 19 Draft Articles 8(3), 13(3), 14(3)(f) and 20(3), Commission Proposal, COM(2014) 164 final. 20 Draft Article 3(8), Commission Proposal, COM(2014) 164 final. 21 Draft Article 2(7), Commission Proposal, COM(2014) 164 final. 22 Draft Articles 8(4), 13(3), 14(3)(g), and 20(3) and (4), Commission Proposal, COM(2014) 164 final. 23 The exception is in draft Article 20(3), Commission Proposal, COM(2014) 164 final. 24 Council doc. 6093/15 of 13 February 2015, p. 4.

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This type of provisions are however not totally novel. The amended Visa Facilitation Agreements between the EU and Ukraine and Moldova, respectively, and the Visa Facilitation Agreements between the EU and Armenia and Azerbaijan, respectively, contain provisions of this kind.25 The Regulation itself already provides, in Article 24(2), for the issue of multiple-entry visas to ‘family members of EU citizens’ who prove their ‘integrity and reliability’. It is regretful that the proposal is silent in relation to family members of third country nationals who are long-term residents in the EU, particularly in the light of calls from the Tampere European Council for approximating the status of such third country nationals to that of Union citizens.26 Currently the only reference in the Regulation to this category is found in Article 24(2) relating to their entitlement to multiple-entry visas, which the proposal however deletes.27 On the other hand, rules on the matter are found in visa facilitation agreements between the EU and third countries (see below MN 10).28 Moreover, in the context of family reunification, Article 13 of the Family Reunification Directive 2003/86/EC provides that a Member State shall grant to a third country national whose application for family reunification has been successful ‘every facility for obtaining the requisite visas’ (see below Hailbronner/Klarmann, Family Reunification Directive 2003/86/EC, Article 13 MN 1 et seq.). The proposal also aims to further reduce the degree of discretion left to the Member States in visa issuing through further clarifying the content of the rules and their legally binding nature. The proposal has been criticised for missing the opportunity to raise the issue of humanitarian visas, which has acquired prominence particularly as a consequence of the Syrian civil war, and for, conversely, proposing amendments which would make the issuing of such visas by the Member States in the form of LTV visas more difficult (see Article 8 MN 2; Article 17 MN 2; Article 40 MN 1).29 The issue may however be taken up by the European Parliament during negotiations on the proposal.

III. Territorial application The Regulation does not apply to the United Kingdom and Ireland by virtue of the 5 Protocol on the Schengen acquis integrated into the framework of the European Union attached to the Treaties. Any participation of these two Member States, which is very unlikely, would be subject to a unanimous decision of the Council in accordance with Article 4 of said Protocol.30 The Regulation applies to Denmark under international law in accordance with the Protocol on the position of Denmark attached to the Treaties. It also applies to Iceland, Norway, Switzerland and Liechtenstein by virtue of agreements between the EU and these countries on their association with the implementation, application and development of the Schengen acquis (see above Recitals 32, 34 and 35). The Regulation will be applicable to Cyprus, Romania, Bulgaria and Croatia only once the Council so decides unanimously after consultation of the European Parliament in accordance with the Acts of Accession of these Member States to the EU. 25

See for example Articles 4 and 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). European Council, Presidency Conclusions, 15 and 16 October 1999, para 18. See also European Council, The Stockholm Programme – An open and secure Europe serving the citizens (OJ 2010 C 115/ 1), para 6.1.4. 27 Draft Article 21, Commission Proposal, COM(2014) 164 final. 28 See for example Articles 4 and 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 29 See Jensen, CEPS Paper in Liberty and Security No 68. See also Fundamental Rights Agency, Annual Report 2013, para 2.4. 30 See ECJ, United Kingdom v Council, C-77/05, EU:C:2007:803. 26

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IV. Scope 1. Length of stays and types of visas 6

The visas covered by the Regulation are visas for transit or intended stays in the Member States not exceeding 90 days in any 180 days period. The period of ‘90 days in any 180 days’ was introduced through an amendment to the Regulation following the ECJ judgment in Bot.31 Prior to the amendment, the length of the permitted stay was defined as ‘not exceeding three months in any six months period’. In Bot, which concerned the short stay of a third country national not subject to visa requirements under Article 20(1) of the Schengen Implementing Convention, the ECJ clarified that wording of this kind effectively meant that a third country national could stay for a period of almost six months by aggregating two successive non-consecutive stays. According to the Commission, this represented a circumvention of the rules on long-stays.32 Currently, competence to regulate entries and stays of more than 90 days remains with the Member States subject to the Long Term Residents’ Directive 2003/109/EC which regulates the legal status of third country nationals who are long-term residents in a Member State. There is currently a proposal to introduce a further type of visa called a ‘touring visa’.33 This would be a visa both for visa-exempt and visa requiring third country nationals under the Visa Regulation (EC) No 539/2001 who intend to stay in two or more Member States for a period lasting longer than 90 days but not exceeding 1 year provided they do not intend to stay in the same Member State for longer than 90 days, in which case they would be required to obtain a national long-stay visa or residence permit. The touring visa is supposed to fill the legal gap affecting those travellers, such as live performing artists, who ‘tour around’ Europe and for whom neither a short-stay uniform visa nor a national long-stay visa provides. The proposal stipulates that many parts of the Regulation would apply to touring visas. The scope of the Regulation could not itself be extended to cover touring visas as the Regulation applies only to third country nationals who require a visa under the Visa Regulation (EC) No 539/2001. The visas covered by the Regulation are ‘uniform’ visas, that is to say visas ‘valid for the entire territory of the Member States’. The Regulation also establishes rules on visas ‘with limited territorial validity’, which are visas ‘valid for the territory of one or more Member States but not all Member States’ and ‘airport transit visas’ which are visas valid for transit through the international transit areas of one or more airports of the Member States’ (see below Article 2).

2. Third country nationals covered by the Visa Regulation (EC) No 539/2001 7

The Regulation applies to third country nationals who under the Visa Regulation (EC) No 539/2001 require a visa to cross the external borders of the Member States. The Visa Regulation (EC) No 539/2001, which is in constant evolution, lists the nationalities requiring visas and those which are visa exempt and provides for mandatory and discretionary exceptions/exemptions. While the Visa Regulation lists Turkey among the countries whose nationals require a visa to cross the external borders of the Member States, some Turkish nationals do not actually require visas to enter some Member 31

ECJ, Bot, C-241/05, EU:C:2006:634; Regulation (EU) No 610/2013 (OJ 2013 L 182/1). See ECJ, Bot, C-241/05, EU:C:2006:634, paras 33 and 42. 33 Commission Proposal, COM(2014) 163 final. 32

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States. In Soysal and Savatli, the ECJ found that, by virtue of the ‘stand still’ clause in the 1970 Additional Protocol to the 1963 Association Agreement between the EEC and Turkey, Turkish nationals residing in Turkey and travelling to a Member State to provide services on behalf of an undertaking established in Turkey are not required to have a visa to enter the territory of that Member State if the Member State in question did not require such a visa at the time of the entry into force, with regard to that Member State, of the Additional Protocol.34 Commission proposals to include a reference to the Soysal and Savatli judgment in the Visa Regulation (EC) No 539/2001 were unsuccessful. It remains the case, as Peers stresses, that EU international treaties have pre-eminence over EU secondary legislation.35 Accordingly, the Regulation is not applicable to Turkish nationals covered by the Soysal and Savatli judgment.36 In the subsequent case of Demirkan, the ECJ found that the freedom to provide services in the Association Agreement between the EEC and Turkey cannot be interpreted as encompassing a freedom to receive services.37

3. Third country nationals covered by the Free Movement Directive 2004/38/EC Article 1(2) states that the Regulation applies without prejudice to the free movement 8 rights of third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC, and of EEA and Swiss nationals. Under the Free Movement Directive 2004/38/EC, when visas are applicable to family members of EU citizens covered by the Directive, in accordance with the Visa Regulation (EC) No 539/2001 or, in the case of the United Kingdom and Ireland, national law, Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued free of charge as soon as possible and on the basis of an accelerated procedure’.38 Following the ECJ judgment in MRAX, where family members are not in possession of the necessary visas, Member States must give them the opportunity to corroborate their identity at the border.39 Furthermore, following the ECJ judgment in Commission v Spain, a Member State cannot refuse a visa or entry on the sole ground of a Schengen Information System alert without first verifying whether the third country national’s presence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.40 Family members are also entitled under the Directive to certain procedural guarantees. It is worth noting that apart from the general reference in Article 1(2)(a) and specific 9 references in Article 3(5)(d) on exemption from airport transit visas and in the visa application form contained in Annex 1, the Regulation does not contain provisions reflecting the Member States’ obligations under the Free Movement Directive 2004/38/ EC or clarifying explicitly the relationship between the rules in the Regulation and the rules applicable under the Directive. Thus, for example, the provisions in the Regulation on the visa fee do not include among the categories exempted from the visa fee family members of EU citizens covered by the Directive (see below Article 16 MN 1). The two instruments have been kept separate because of their different legal bases. In practical terms, the difference in legal basis means that the Directive is applicable to the United 34

ECJ, Soysal and Savatli, C-228/06, EU:C:2009:101. Peers, Statewatch (2012). 36 For an analysis of the practical effect of the judgment see Groenendijk/Guild, Economic Development Foundation Publications, No 232 (2010). See also Commission Guidelines, C(2009) 7376 final. 37 ECJ, Demirkan, C-221/11, EU:C:2013:583. 38 Article 5(2). 39 ECJ, MRAX, C-459/99, EU:C:2002:461. 40 ECJ, Commission v Spain, C-503/03, EU:C:2006:74. 35

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Kingdom and Ireland, while the Regulation is not (and the opposite is true with regard to non-EU Schengen states). Conversely, the Visa Handbook, which is not legally binding, contains a whole chapter devoted to the topic of third country nationals covered by the Directive.41 As this situation was seen as a source of confusion for consulates, the Commission proposal on amending and recasting the Regulation (see above MN 4) attempts to include some of the specific rules which are applicable to third country nationals under the Directive (see below Article 9 MN 4; Article 14 MN 4; Article 16 MN 1; Article 23 MN 1).42 This move has however been opposed in the Council at working party level.43 In certain respects, the proposal goes further than simply including the rules in the Directive by providing for detailed rules where the Directive leaves discretion to the Member States. Thus, for example, while under the Directive the Member States are bound to issue visas ‘as soon as possible on the basis of an accelerated procedure’ in the proposal they are obliged to issue visas within 5 days from the date of the lodging of an application (see below Article 23 MN 1).44 The proposal also clarifies that, with the exception of the Member States’ obligation to issue visas within 5 days from the lodging of an application, the visa facilitations provided in the proposal are applicable to all family members envisaged in Article 3 of the Directive (i. e. ‘core’ and ‘extended’).45 In other respects, the proposal goes a step back than the Regulation. This is the case for example in relation to multiple entry visas (see below Article 24 MN 2).46 Furthermore, the proposal does not clarify why it includes only some, as opposed to all, of the obligations resulting from the Free Movement Directive. In this way, it fails to bring about clarity. In particular, it does not incorporate the relevant case law of the ECJ, such as MRAX and Commission v Spain (see above MN 8).47

4. Third country nationals covered by Visa Facilitation Agreements 10

Recital 26 of the Regulation provides that visa facilitation agreements between the EU and third countries may derogate from the provisions of the Regulation. Generally, such agreements, as EU international treaties, may, as a matter of EU law, have pre-eminence over EU secondary legislation, particularly if they have direct effect.48 The EU has concluded, or is in the process of concluding, visa facilitation agreements with a number of third countries in exchange for readmission agreements.49 These agreements provide for visa facilitations for certain categories of EU citizens and citizens of the third countries concerned in relation to documentary requirements, multiple entry visas, visa fees and length of procedures. These categories may include ‘close’ relatives visiting EU citizens legally residing in the third country concerned, or in the Member State of which they are nationals, and ‘close’ relatives visiting nationals of the third country concerned legally residing in the EU, or in the third country concerned. Furthermore, 41 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III. 42 Draft Articles 8(4), 13(3), 14(3)(g), and 20(3) and (4), Commission Proposal, COM(2014) 164 final. 43 Council doc. 6093/15 of 13 February 2015, p. 4. 44 Draft Article 20(3), Commission Proposal, COM(2014) 164 final. 45 The five day time limit, under draft Article 20(3), relates only to ‘core’ family members under the Directive, excluding ‘extended’ family members. 46 Draft Article 21, Commission Proposal, COM(2014) 164 final. 47 ECJ, MRAX, C-459/99, EU:C:2002:461; ECJ, Commission v Spain, C-503/03, EU:C:2006:74. Cfr. Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III, paras 3.8 and 4. 48 See for example ECJ, Intertanko and Others, C-308/06, EU:C:2008:312, paras 42–43. 49 A list can be found on: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy/index_en.htm [last accessed 06 April 2015].

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they provide for visa exemption for holders of diplomatic passports and, with regard to the amended Visa Facilitation Agreements between the EU and Ukraine and Moldova respectively, for holders of biometric service passports.50 They exclude from their scope matters such as recognition of travel documents, visa refusal, proof of sufficient means of subsistence, refusal of entry and expulsion matters. These agreements do not apply to the United Kingdom and Ireland, Denmark, Lichtenstein, Switzerland, Iceland and Norway. Bilateral agreements have been concluded between some of these countries and the third countries concerned.51 It seems the case that the United Kingdom and Ireland would not be able to opt into EU visa facilitation agreements directly without firstly opting into the EU internal harmonization measures by virtue of the AETR doctrine.52

5. Compliance with data protection and human rights instruments Recital 12 of the Regulation states that Directive 95/46/EC on the protection of 11 individuals regarding personal data,53 which will soon be replaced by a new data protection regulation,54 applies to the Member States with regard to the processing of personal data pursuant to the Regulation. Article 43(9) underlines that, in cases of cooperation with external service providers, the Member States remain responsible for compliance with data protection rules. Recital 29 states that the Regulation respects fundamental rights and observes the principles recognized in particular by the ECHR and the CFR. It is worth confronting this Recital to Recital 20 of the Schengen Borders Code Regulation (EC) No 562/2006 which adds that the Schengen Borders Code Regulation ‘should be applied in accordance with the Member States’ obligations as regards international protection and nonrefoulement’. This Recital finds effect in Article 3a and Article 13 of the Schengen Borders Code Regulation (see below Article 32 MN 1). The difference between the Recitals of the two Regulations may be taken to reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) of the Geneva Convention applies in relation to asylum-seekers who have reached their borders, there is no general acceptance that such an obligation can be triggered in relation to visa issuing abroad, which is the very reason why visa requirements have proliferated as interdiction measures. This position finds further reflection in Article 3(2) of the Asylum Procedures Directive 2013/32/EU which states that the Directive ‘shall not apply to requests for diplomatic or territorial asylum submitted to representations of the Member States’ (see below Vedsted-Hansen, Asylum Procedures Directive 2013/32/EU, Article 3 MN 5). This issue, as well as non-refoulement under the ECHR and the CFR, is explored below (see below Article 25 MN 3).

6. List of nationalities subject to airport transit visas The Regulation also covers the list of third countries whose nationals require airport 12 transit visas to transit through the international transit areas of Member States’ airports and the conditions and procedures for issuing such visas. The inclusion of such a list in the Regulation, rather than in the Visa Regulation (EC) No 539/2001, results from the ECJ judgment in Commission v Council on airport transit visas where the ECJ excluded 50 See for example Article 1, Agreement amending the EC-Moldova Visa Facilitation Agreement (OJ 2013 L 168/3). 51 For the list, see the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part I, para 5. 52 ECJ, Commission v Council, 22/70, EU:C:1971:32. 53 OJ 1995 L 281/31. 54 Commission Proposal, COM(2012) 9, 10, 11.

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the possibility that such a list could be covered by former Article 100c EC (see above Article 1 MN 2).55

Article 2 Definitions For the purpose of this Regulation the following definitions shall apply: 1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; 2. ‘visa’ means an authorisation issued by a Member State with a view to: (a) transit through or an intended stay on the territory of the Member States of a duration of no more than 90 days in any 180-day period; (b) transit through the international transit areas of airports of the Member States; 3. ‘uniform visa’ means a visa valid for the entire territory of the Member States; 4. ‘visa with limited territorial validity’ means a visa valid for the territory of one or more Member States but not all Member States; 5. ‘airport transit visa’ means a visa valid for transit through the international transit areas of one or more airports of the Member States; 6. ‘visa sticker’ means the uniform format for visas as defined by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas(18); 7. ‘recognised travel document’ means a travel document recognised by one or more Member States for the purpose of affixing visas; 8. ‘separate sheet for affixing a visa’ means the uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form as defined by Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(19); 9. ‘consulate’ means a Member State’s diplomatic mission or a Member State’s consular post authorised to issue visas and headed by a career consular officer as defined by the Vienna Convention on Consular Relations of 24 April 1963; 10. ‘application’ means an application for a visa; 11. ‘commercial intermediary’ means a private administrative agency, transport company or travel agency (tour operator or retailer).

TITLE II AIRPORT TRANSIT VISA Article 3 Third-country nationals required to hold an airport transit visa 1. Nationals of the third countries listed in Annex IV shall be required to hold an airport transit visa when passing through the international transit areas of airports situated on the territory of the Member States. 55

ECJ, Commission v Council, C-170/96, EU:C:1998:219. OJ L 164, 14.7.1995, p. 1. (19) OJ L 53, 23.2.2002, p. 4. (18)

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2. In urgent cases of mass influx of illegal immigrants, individual Member States may require nationals of third countries other than those referred to in paragraph 1 to hold an airport transit visa when passing through the international transit areas of airports situated on their territory. Member States shall notify the Commission of such decisions before their entry into force and of withdrawals of such an airport transit visa requirement. 3. Within the framework of the Committee referred to in Article 52(1), those notifications shall be reviewed on an annual basis for the purpose of transferring the third country concerned to the list set out in Annex IV. 4. If the third country is not transferred to the list set out in Annex IV, the Member State concerned may maintain, provided that the conditions in paragraph 2 are met, or withdraw the airport transit visa requirement. 5. The following categories of persons shall be exempt from the requirement to hold an airport transit visa provided for in paragraphs 1 and 2: (a) holders of a valid uniform visa, national long-stay visa or residence permit issued by a Member State; (b) third-country nationals holding a valid residence permit issued by a Member State which does not take part in the adoption of this Regulation or by a Member State which does not yet apply the provisions of the Schengen acquis in full, or third-country nationals holding one of the valid residence permits listed in Annex V issued by Andorra, Canada, Japan, San Marino or the United States of America guaranteeing the holder’s unconditional readmission; (c) third-country nationals holding a valid visa for a Member State which does not take part in the adoption of this Regulation, for a Member State which does not yet apply the provisions of the Schengen acquis in full, or for Canada, Japan or the United States of America, when travelling to the issuing country or to any other third country, or when, having used the visa, returning from the issuing country; (d) family members of citizens of the Union as referred to in Article 1(2)(a); (e) holders of diplomatic passports; (f) flight crew members who are nationals of a contracting Party to the Chicago Convention on International Civil Aviation. Content I. Scope and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedure and conditions for unilateral imposition of airport transit visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exempted categories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. Scope and drafting history Article 3(1) establishes an obligation for nationals of third countries listed in Annex 1 IV of the Regulation to hold airport transit visas when passing through the international transit areas of the Member States’ airports. The Annex contains a list of 12 countries including Afghanistan, Bangladesh, Democratic Republic of Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia and Sri Lanka. This provision replaced Joint Action 96/197/JHA on Airport Transit Visas which was adopted under the old Third Pillar of the Maastricht Treaty (see above Article 1 MN 2 and 12; below Article 56(2)(c)). The Joint Action did not include Pakistan and Bangladesh which were however included in the Schengen airport transit visa list. As the Joint Action has been repealed by the Regulation, it is no longer applicable to the UK and Ireland. Meloni

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II. Procedure and conditions for unilateral imposition of airport transit visas Article 3(2), (3) and (4) establishes that individual Member States may impose airport transit visas on nationals of third countries other than those in the common list ‘in urgent cases of mass influx of illegal immigrants’. According to Peers, this is prima facie a high threshold, taking also into account that the Member States’ power should be construed narrowly. Moreover national decisions on imposing airport transit visas could be challenged on the basis that such a criterion is not met.56 The Article also establishes the procedure that Member States must follow when they decide to unilaterally introduce airport transit visas, and the possibility of adding the third countries concerned to the common list. Amendments to the common list are to be adopted in accordance with the ‘regulatory procedure with scrutiny’ (see below Article 50). The Regulation does not provide for any conditions for such amendments apart from a general reference to combating illegal immigration in Recital 5. Currently, there are approximately 34 third countries whose nationals are subject to airport transit visas by one or more Member States. 3 In its proposal for amending and recasting the Regulation (see above Article 1 MN 4), the Commission maintains the possibility of Member State unilateral action in the field of airport transit visas. The criterion for such an action is changed to ‘a sudden and substantial influx of irregular immigrants’, which echoes the ‘substantial and sudden increase’ criterion of the suspension mechanism in the Visa Regulation (EC) No 539/2001.57 A Member State planning to introduce airport transit visas is under an obligation to substantiate the sudden and substantial influx of irregular immigrants in its notification to the Commission. The duration of the airport transit visa requirement is not to exceed 12 months (with the possibility of a further 12 month extension) and ‘what is strictly necessary’.58 In the proposal, the procedure whereby the Commission may amend the common airport transit visa list, and the list of residence permits exempting the holder from the airport transit visa requirement (see below Articles 50 and 52 MN 1), changes to the ‘delegated acts’ procedure taking into account changes introduced by Regulation (EU) 182/2011.59 2

III. Exempted categories 4

Article 3(5) stipulates the categories of persons who are exempted from airport transit visas. Article 3(5)(b) and (c), introduced through an amendment to the original Regulation,60 makes provision for airport transit visa exemption for holders of visas or residence permits issued by the United Kingdom and Ireland or by those Member States which are not yet applying the Regulation, namely Cyprus, Romania, Bulgaria and Croatia (see above Article 1 MN 5).

56

Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 255–256. See Article 1(2), Regulation (EU) No 1289/2013 amending Regulation (EC) No 539/2001 (OJ 2013 L 347/74). 58 Draft Article 3(3), Commission Proposal, COM(2014) 164 final. 59 OJ 2011 L 55/13. See draft articles 48 and 49, Commission Proposal, COM(2014) 164 final. 60 Regulation (EU) No 154/2012 (OJ 2012 L 58/3). 57

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The Commission has proposed to add to the exempted categories in the Regulation 5 holders of ‘touring’ visas issued by a Member State (see above Article 1 MN 6), holders of visas for a EEA country, as included in the original version of the Regulation, holders of residence permits or visas issued by the Caribbean parts of the Netherlands and holders of service, official or special passports.61 With regard to third country national family members of EU citizens covered by the 6 Free Movement Directive 2004/38/EC, the proposal clarifies that the exemption covers all categories envisaged in Article 3 of the Directive, that is to say both ‘core’ and ‘extended’ family members (see above Article 1 MN 9).62 The proposal does not extend this particular exemption to third country national family members of EU citizens outside the scope of the Directive, notwithstanding its general objective to introduce visa facilitations for this particular category (see above Article 1 MN 4).

TITLE III PROCEDURES AND CONDITIONS FOR ISSUING VISAS CHAPTER I Authorities taking part in the procedures relating to applications

Article 4 Authorities competent for taking part in the procedures relating to applications 1. Applications shall be examined and decided on by consulates. 2. By way of derogation from paragraph 1, applications may be examined and decided on at the external borders of the Member States by the authorities responsible for checks on persons, in accordance with Articles 35 and 36. 3. In the non-European overseas territories of Member States, applications may be examined and decided on by the authorities designated by the Member State concerned. 4. A Member State may require the involvement of authorities other than the ones designated in paragraphs 1 and 2 in the examination of and decision on applications. 5. A Member State may require to be consulted or informed by another Member State in accordance with Articles 22 and 31. Article 4 establishes the general rule that applications should be examined and 1 decided by consulates.

Article 5 Member State competent for examining and deciding on an application 1. The Member State competent for examining and deciding on an application for a uniform visa shall be: (a) the Member State whose territory constitutes the sole destination of the visit(s); 61 62

Draft Article 3(8), Commission Proposal, COM(2014) 164 final. Draft Article 3(8)(d), Commission Proposal, COM(2014) 164 final.

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(b) if the visit includes more than one destination, the Member State whose territory constitutes the main destination of the visit(s) in terms of the length or purpose of stay; or (c) if no main destination can be determined, the Member State whose external border the applicant intends to cross in order to enter the territory of the Member States. 2. The Member State competent for examining and deciding on an application for a uniform visa for the purpose of transit shall be: (a) in the case of transit through only one Member State, the Member State concerned; or (b) in the case of transit through several Member States, the Member State whose external border the applicant intends to cross to start the transit. 3. The Member State competent for examining and deciding on an application for an airport transit visa shall be: (a) in the case of a single airport transit, the Member State on whose territory the transit airport is situated; or (b) in the case of double or multiple airport transit, the Member State on whose territory the first transit airport is situated. 4. Member States shall cooperate to prevent a situation in which an application cannot be examined and decided on because the Member State that is competent in accordance with paragraphs 1 to 3 is neither present nor represented in the third country where the applicant lodges the application in accordance with Article 6. Content I. Member State competent for examining and deciding on an application and representation arrangements under Article 8. . . . . . . . . . . . . . . . . . . . . . . . . . . II. Proposals for reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Member State competent for examining and deciding on an application and representation arrangements under Article 8 1

Article 5(1), (2) and (3) establishes the Member State competent for examining and deciding on a visa application for stays, transit and airport transit. Article 5(4) provides that the Member States ‘shall cooperate’ to prevent a situation where an application cannot be examined and decided because the competent Member State is neither present nor represented in the country where the application is to be lodged. The classic means of cooperation is representation between Member States. In this context, Article 8(5) provides that Member States lacking their own consulate in a third country ‘shall endeavour’ to conclude representation arrangements with Member States that have consulates in that country. Furthermore, Article 8(6) provides that Member States lacking their own consulate in a particular area or region ‘shall endeavour’ to conclude representation arrangements with Member States who are present in such a region or area when otherwise lodging a visa application would require a disproportionate effort on the part of visa applicants because of large distances or poor transport infrastructures.

II. Proposals for reform 2

The Commission, in its proposal to amend and recast the Regulation (see above Article 1 MN 4), has proposed to amend these rules as they ‘seem too rigid to match 134

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Art. 6

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Part B III

reality’.63 According to the Commission, Articles 5(4) and 8(5) are difficult to enforce because of their ‘soft law’ nature and many Member States are still not present or represented in some third countries or regions. This lack of consular coverage is inconsistent with the requirement, in Article 6, that an applicant must apply for a visa in his place of residence. Therefore, the Commission has proposed that if the Member State competent for examining and deciding on the visa application is neither present nor represented in the country where the application is to be lodged, the applicant is entitled to lodge the application at the consulate of one of the Member States of destination, or, if that is not applicable, at the consulate of the Member State of first entry, or, in all other cases concerned at the consulate of any of the Member States that are present in the country.64 In this context, some Member States have expressed the wish to clarify the issue of responsibility for examining asylum applications in the context of the Dublin III Regulation (EU) No 604/2013 in such cases of visas issued through a mandatory representation.65 The proposal also attempts to address the problem of ‘consular shopping’. It appears 3 that in certain cases visa applicants adapt their travel itinerary (even as a matter of hours) in order to be able to lodge their visa application with the consulate considered the most ‘accessible’ in terms of visa issuing practices and geographical proximity. Accordingly, the Commission has proposed that the Member State of main destination will be assessed according to the length of stay counted in days. Furthermore, as the current rules cause difficulties for persons who have to travel to several Member States in consecutive trips but do not have time to apply for several visas and consulates have been unwilling to take responsibility for issuing multiple-entry visas, the Commission has proposed that the Member State of main destination will also be competent for examining and deciding on an application when several separate visits are to be carried out within a period of two months.66

Article 6 Consular territorial competence 1. An application shall be examined and decided on by the consulate of the competent Member State in whose jurisdiction the applicant legally resides. 2. A consulate of the competent Member State shall examine and decide on an application lodged by a third-country national legally present but not residing in its jurisdiction, if the applicant has provided justification for lodging the application at that consulate. Article 6 establishes the general rule that it is the consulate, of the competent Member 1 State, in the country of residence of the applicant which shall examine and decide on the visa application. This is so as such a consulate is considered to be the best placed to examine any risk of irregular immigration. Article 6 provides for some flexibility by stating that a consulate in a country where the visa applicant is legally present may examine and decide on an application if the applicant provides justification for lodging his application with that consulate. This gives the possibility, for example, to visitors to 63

Commission Staff Working Document, SWD(2014) 101 final, p. 5. See Commission Staff Working Document, SWD(2014) 101 final, p. 5, 30–34, and draft Article 5(2), Commission Proposal, COM(2014) 164 final. 65 Council doc. 12046/14 of 25 July 2014, p. 10. 66 Draft Article 5(1)(b), Commission Proposal, COM(2014) 164 final. 64

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the UK, to apply for a uniform visa there if they want to extend their visit to another or more Member States.

Article 7 Competence to issue visas to third-country nationals legally present within the territory of a Member State Third-country nationals who are legally present in the territory of a Member State and who are required to hold a visa to enter the territory of one or more other Member States shall apply for a visa at the consulate of the Member State that is competent in accordance with Article 5(1) or (2). 1

Article 7 covers the rare case where a third country national is legally present in a Member State which takes part in the Schengen acquis without a document entitling him to free circulation (e. g. a person whose asylum application is being examined). Such a person, if required to hold a visa, shall apply at the consulate of the competent Member State. The Commission has proposed to insert rules covering situations where a third country national in the territory of a Member State has lost or has been stolen his travel document.67 Such rules are included in some visa facilitation agreements between the EU and third countries.68

Article 8 Representation arrangements 1. A Member State may agree to represent another Member State that is competent in accordance with Article 5 for the purpose of examining applications and issuing visas on behalf of that Member State. A Member State may also represent another Member State in a limited manner solely for the collection of applications and the enrolment of biometric identifiers. 2. The consulate of the representing Member State shall, when contemplating refusing a visa, submit the application to the relevant authorities of the represented Member State in order for them to take the final decision on the application within the time limits set out in Article 23(1), (2) or (3). 3. The collection and transmission of files and data to the represented Member State shall be carried out in compliance with the relevant data protection and security rules. 4. A bilateral arrangement shall be established between the representing Member State and the represented Member State containing the following elements: (a) it shall specify the duration of such representation, if only temporary, and procedures for its termination; (b) it may, in particular when the represented Member State has a consulate in the third country concerned, provide for the provision of premises, staff and payments by the represented Member State; (c) it may stipulate that applications from certain categories of third-country nationals are to be transmitted by the representing Member State to the central 67 68

136

Draft Article 7(2) and (3), Commission Proposal, COM(2014) 164 final. See for example Article 8 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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Art. 8

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Part B III

authorities of the represented Member State for prior consultation as provided for in Article 22; (d) by way of derogation from paragraph 2, it may authorise the consulate of the representing Member State to refuse to issue a visa after examination of the application. 5. Member States lacking their own consulate in a third country shall endeavour to conclude representation arrangements with Member States that have consulates in that country. 6. With a view to ensuring that a poor transport infrastructure or long distances in a specific region or geographical area does not require a disproportionate effort on the part of applicants to have access to a consulate, Member States lacking their own consulate in that region or area shall endeavour to conclude representation arrangements with Member States that have consulates in that region or area. 7. The represented Member State shall notify the representation arrangements or the termination of such arrangements to the Commission before they enter into force or are terminated. 8. Simultaneously, the consulate of the representing Member State shall inform both the consulates of other Member States and the delegation of the Commission in the jurisdiction concerned about representation arrangements or the termination of such arrangements before they enter into force or are terminated. 9. If the consulate of the representing Member State decides to cooperate with an external service provider in accordance with Article 43, or with accredited commercial intermediaries as provided for in Article 45, such cooperation shall include applications covered by representation arrangements. The central authorities of the represented Member State shall be informed in advance of the terms of such cooperation. Article 8 regulates representation between Member States for the purpose of examin- 1 ing and issuing visas (see also above Article 5). Under Article 8(1), representation may be full, covering the whole visa issuing process, or limited to the collection and the enrolment of biometrics. It appears that the latter type of representation has never been used. On the other hand, according to the Commission, full representation has worked well and is expanding.69

I. Representation and Limited Territorial Validity visas Under Article 8(2), when the representing Member State is envisaging a negative 2 decision on an application it shall transfer the application file to the represented Member State which takes the final decision. Article 8(4)(d) provides that this is so unless, by way of derogation from Article 8(2), the representation agreement between the two Member States authorises the representing Member State to refuse a visa. The general rule is therefore that final decisions on visa refusals are taken by the represented Member State as opposed to the representing Member State. From the point of view of individuals, this is an important provision as it makes it possible for the represented Member State, in cases where the visa applicant does not fulfil the conditions for a uniform visa under Article 32(1), to consider the granting of a Limited Territorial Validity visa instead on ‘humanitarian grounds, for reasons of national interest or because of international obligations’ (see below Article 25(1)(a)(i)). The Commission, in 69

Commission Staff Working Document, SWD(2014) 101 final, p. 31.

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its proposal to amend and recast the Regulation (see Article 1 MN 4), has however proposed to delete this provision on the ground that the requirement renders ‘the system inefficient’ and is ‘inconsistent with a common visa policy’.70 Similarly, the Commission proposal deletes current Article 8(4)(c) on the possibility for the representation arrangement to provide that applications from certain categories of third country nationals are to be transmitted to the represented Member State for prior consultation.71

CHAPTER II Application Article 9 Practical modalities for lodging an application 1. Applications shall be lodged no more than three months before the start of the intended visit. Holders of a multiple-entry visa may lodge the application before the expiry of the visa valid for a period of at least six months. 2. Applicants may be required to obtain an appointment for the lodging of an application. The appointment shall, as a rule, take place within a period of two weeks from the date when the appointment was requested. 3. In justified cases of urgency, the consulate may allow applicants to lodge their applications either without appointment, or an appointment shall be given immediately. 4. Applications may be lodged at the consulate by the applicant or by accredited commercial intermediaries, as provided for in Article 45(1), without prejudice to Article 13, or in accordance with Article 42 or 43. 1

Under Article 9(1) and (4) applications may be lodged at the consulate by the applicant or an accredited commercial intermediary without prejudice to Article 13 (on the collection of biometrics), or they may be lodged in accordance with Article 42 (on honorary consuls) or Article 43 (on external service providers). Applications are to be lodged no more than three months before the start of the intended visit, except for multiple entry visas for which applications can be lodged 6 months in advance. In order to provide for more flexibility, the Commission, in its proposal to amend and recast the Regulation (see above Article 1 MN 4) has proposed to extend the period for lodging an application to ‘six months before and no later than 15 calendar days before the intended visit’, 15 days being the current maximum processing time under Article 23.72

I. The requirement to obtain an appointment 2

As a crowd control measure, Article 9(2) provides that applicants may be required to obtain an appointment for lodging an application which ‘as a rule shall’ be given within two weeks from the day of request. The Commission is currently investigating informally thirteen Member States for violation of this rule.73 ‘In justified cases of urgency’, which is left undefined in the Article, the Member States ‘may’ allow applicants to lodge their applications either without appointment or 70

Commission Staff Working Document, SWD(2014) 101 final, p. 31. Commission Proposal, COM(2014) 164 final. 72 Draft Article 8(1), Commission Proposal, COM(2014) 164 final. 73 Commission Staff Working Document, SWD(2014) 101 final, p. 8. 71

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Art. 10

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an appointment shall be given immediately.74 Some Member States have established fast-track procedures for justified cases of urgencies and certain categories of applicants such as business persons or seafarers.75 The Commission has proposed changes to the formulation of the rules relating to justified cases of urgency to the effect that in such cases the Member States ‘shall’ allow applicants to lodge their application without an appointment or shall give an immediate appointment.76 The requirement to obtain an appointment is not applicable to third country national 3 family members of EU citizens covered by the Free Movement Directive 2004/38/EC as Article 5(2) of the Directive provides that the Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued as soon as possible and on the basis of an accelerated procedure’. While Article 9 is silent on this issue, the Commission proposal makes express provision for this, clarifying that both ‘core’ and ‘extended’ family members are covered (see above Article 1 MN 8–9).77 Furthermore, in pursuance to its aim to facilitate family contacts (see above Article 1 4 MN 4), the Commission proposal extends the same treatment to third country nationals who are ‘close relatives’ of EU citizens residing in their Member State of nationality and third country nationals who are ‘close relatives’ of EU citizens residing in a third country and wishing to visit together with their EU citizen relatives the Member State of which their EU citizen relatives are nationals. The same treatment is not extended to third country national family members of third country nationals who are long-term residents of the EU.78 However, in the context of family reunification, Article 13 of the Family Reunification Directive 2003/86/EC provides that as soon as an application for family reunification has been accepted, the Member State concerned shall authorize the entry of the family member. In that regard, it shall grant such persons ‘every facility for obtaining the requisite visas’.

Article 10 General rules for lodging an application 1. Without prejudice to the provisions of Articles 13, 42, 43 and 45, applicants shall appear in person when lodging an application. 2. Consulates may waive the requirement referred to in paragraph 1 when the applicant is known to them for his integrity and reliability. 3. When lodging the application, the applicant shall: (a) present an application form in accordance with Article 11; (b) present a travel document in accordance with Article 12; (c) present a photograph in accordance with the standards set out in Regulation (EC) No 1683/95 or, where the VIS is operational pursuant to Article 48 of the VIS Regulation, in accordance with the standards set out in Article 13 of this Regulation; 74 Some guidance on ‘justified cases of urgency’ is provided in the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II para 3.2.1. 75 Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II, para 3.2.3. 76 Draft Article 8(5), Commission Proposal, COM(2014) 164 final. 77 Draft Article 8(4), Commission Proposal, COM(2014) 164 final. 78 Some visa facilitation agreements provide similar rules as the Regulation regarding the prior appointment requirement. See for example Article 7(3) EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53).

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(d) allow the collection of his fingerprints in accordance with Article 13, where applicable; (e) pay the visa fee in accordance with Article 16; (f) provide supporting documents in accordance with Article 14 and Annex II; (g) where applicable, produce proof of possession of adequate and valid travel medical insurance in accordance with Article 15. Content I. The requirement to appear in person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The one-stop principle in Article 40(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

2 3 4

Article 10(3) lists the steps that an applicant is required to follow when lodging an application in terms of presenting an application form, a travel document, a photograph, allowing the collection of his fingerprints, paying the visa fee, providing supporting documents, and producing proof of possession of travel medical insurance.

I. The requirement to appear in person 2

Article 10(1) establishes the general rule that applicants shall appear in person when lodging an application without prejudice to Article 13, on collection of biometrics, Article 42, on honorary consuls, Article 43, on external service providers, and Article 45, on accredited commercial intermediaries. Applicants will always have to appear in persons in places where the Visa Identification System has been rolled out and it is necessary to collect their fingerprints for the first time (see below Article 13(2)). When they apply through an accredited commercial intermediary, visa applicants will not have to appear in person unless it is necessary to collect their fingerprints, which commercial intermediaries are not authorized to do.

II. The one-stop principle in Article 40(4) 3

In cases where a Member State cooperate with an external service provider as per Article 43, the applicant cannot be required to go to the external service provider to hand in his application and supporting documents and then to the consulate to have his fingerprints taken by virtue of the one-stop principle in Article 40(4). The external service provider will have to take the fingerprints. The Commission is currently investigating informally a Member State which had such a two stop-procedure in place.79

III. Exceptions 4

Article 10(2) establishes an exception to the general rule that an applicant must appear in person for applicants who are known to the consulate for their ‘integrity and reliability’. Article 24(2)(b) lists among relevant factors to establish the ‘integrity and reliability’ of visa applicants, the lawful use of previous visas, the economic situation of the applicant and his genuine intention to leave at the expiry of the visa, without any further detail or clarification. The Commission has pointed out that these are not objective criteria to the effect that applicants, in practice, do not know when they are entitled to not appear in person.80 79 80

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Commission Staff Working Document, SWD(2014) 101 final, p. 9. Commission Staff Working Document, SWD(2014) 101 final, p. 10.

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Art. 11–13

Visa Code Regulation (EC) No 810/2009

Part B III

Given that the requirement to appear in person is cumbersome and costly to applicants, that it does not provide any added value in terms of detecting irregular immigrants as increasingly decision-making on visas involves no contact with applicants but it is rather a paper procedure, and that under Article 21(8) there is in any case the possibility to call in applicants for an interview, the Commission has proposed to abandon this general requirement and require applicants to appear in person only when their fingerprints need to be taken.81

Article 11 Application form 1. Each applicant shall submit a completed and signed application form, as set out in Annex I. Persons included in the applicant’s travel document shall submit a separate application form. Minors shall submit an application form signed by a person exercising permanent or temporary parental authority or legal guardianship. 2. Consulates shall make the application form widely available and easily accessible to applicants free of charge. 3. The form shall be available in the following languages: (a) the official language(s) of the Member State for which a visa is requested; (b) the official language(s) of the host country; (c) the official language(s) of the host country and the official language(s) of the Member State for which a visa is requested; or (d) in case of representation, the official language(s) of the representing Member State. In addition to the language(s) referred to in point (a), the form may be made available in another official language of the institutions of the European Union. 4. If the application form is not available in the official language(s) of the host country, a translation of it into that/those language(s) shall be made available separately to applicants. 5. A translation of the application form into the official language(s) of the host country shall be produced under local Schengen cooperation provided for in Article 48. 6. The consulate shall inform applicants of the language(s) which may be used when filling in the application form.

Article 12 Travel document The applicant shall present a valid travel document satisfying the following criteria: (a) its validity shall extend at least three months after the intended date of departure from the territory of the Member States or, in the case of several visits, after the last intended date of departure from the territory of the Member States. However, in a justified case of emergency, this obligation may be waived; (b) it shall contain at least two blank pages; (c) it shall have been issued within the previous 10 years.

81

Draft Article 9, Commission Proposal, COM(2014) 164 final.

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Article 13 Biometric identifiers 1. Member States shall collect biometric identifiers of the applicant comprising a photograph of him and his 10 fingerprints in accordance with the safeguards laid down in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child. 2. At the time of submission of the first application, the applicant shall be required to appear in person. At that time, the following biometric identifiers of the applicant shall be collected: – a photograph, scanned or taken at the time of application, and – his 10 fingerprints taken flat and collected digitally. 3. Where fingerprints collected from the applicant as part of an earlier application were entered in the VIS for the first time less than 59 months before the date of the new application, they shall be copied to the subsequent application. However, where there is reasonable doubt regarding the identity of the applicant, the consulate shall collect fingerprints within the period specified in the first subparagraph. Furthermore, if at the time when the application is lodged, it cannot be immediately confirmed that the fingerprints were collected within the period specified in the first subparagraph, the applicant may request that they be collected. 4. In accordance with Article 9(5) of the VIS Regulation, the photograph attached to each application shall be entered in the VIS. The applicant shall not be required to appear in person for this purpose. The technical requirements for the photograph shall be in accordance with the international standards as set out in the International Civil Aviation Organization (ICAO) document 9303 Part 1, 6th edition. 5. Fingerprints shall be taken in accordance with ICAO standards and Commission Decision 2006/648/EC of 22 September 2006 laying down the technical specifications on the standards for biometric features related to the development of the Visa Information System(20). 6. The biometric identifiers shall be collected by qualified and duly authorised staff of the authorities competent in accordance with Article 4(1), (2) and (3). Under the supervision of the consulates, the biometric identifiers may also be collected by qualified and duly authorised staff of an honorary consul as referred to in Article 42 or of an external service provider as referred to in Article 43. The Member State(s) concerned shall, where there is any doubt, provide for the possibility of verifying at the consulate fingerprints which have been taken by the external service provider. 7. The following applicants shall be exempt from the requirement to give fingerprints: (a) children under the age of 12; (b) persons for whom fingerprinting is physically impossible. If the fingerprinting of fewer than 10 fingers is possible, the maximum number of fingerprints shall be taken. However, should the impossibility be temporary, the applicant shall be required to give the fingerprints at the following application. The authorities competent in accordance with Article 4(1), (2) and (3) shall be entitled to ask for (20)

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OJ L 267, 27.9.2006, p. 41.

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Art. 11–13

Visa Code Regulation (EC) No 810/2009

Part B III

further clarification of the grounds for the temporary impossibility. Member States shall ensure that appropriate procedures guaranteeing the dignity of the applicant are in place in the event of there being difficulties in enrolling; (c) heads of State or government and members of a national government with accompanying spouses, and the members of their official delegation when they are invited by Member States’ governments or by international organisations for an official purpose; (d) sovereigns and other senior members of a royal family, when they are invited by Member States’ governments or by international organisations for an official purpose. 8. In the cases referred to in paragraph 7, the entry ‘not applicable’ shall be introduced in the VIS in accordance with Article 8(5) of the VIS Regulation. Content I. Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Biometric identifiers and Articles 7 and 8 of the CFR . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Exemptions It is worth noting that third country national family members of EU citizens covered 1 by the Free Movement Directive 2004/38/EC are not included among the categories exempted from the requirement to have their fingerprints collected and stored.

II. Biometric identifiers and Articles 7 and 8 of the CFR Biometric identifiers must be collected, stored and used in accordance with the 2 ECHR, the CFR and the UN Convention on the Rights of the Child. Detailed rules on the use of the Visa Identification System by visa authorities are contained in the Visa Information System (VIS) Regulation (EC) No 767/2008 which also establishes the rights and remedies available to individuals.82 While the legality of both the Regulation, in relation to the collection of the biometrics of visa applicants, and the VIS Regulation (EC) No 767/2008, in relation to the storing and use of such biometrics, has not been challenged, there have been challenges, under Articles 7 and 8 of the CFR, on respect for private and family life and on protection of personal data, to other EU measures providing for the collection and storing of personal data which may be relevant in this context. In the case of Schwarz, the German Administrative Court, Gelsenkirchen, made a preliminary reference to the ECJ concerning the validity of the EU passports Regulation (EC) No 2252/ 2004 under Articles 7 and 8 of the CFR on the basis that the Regulation obliges individuals applying for a passport to provide fingerprints which are stored in that passport. The ECJ held that although the taking and storing of fingerprints in passports constitutes an infringement of the rights to respect for private life and the protection of personal data, those measures are justified by the aim of protecting against any fraudulent use of passports with a view to pursuing the general interest objective of preventing illegal entry into the EU. The Court found that there was no evidence suggesting that the measures in question did not respect the essence of the fundamental rights at issue, and that the measures were appropriate and did not go beyond what was 82

OJ 2008 L 218/60, Chapters II and VI.

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necessary to achieve their general objective. The Court however noted that the EU passports Regulation (EC) No 2252/2004 explicitly limited the use of fingerprints to verify the authenticity of a passport and the identity of its holder. It also did not provide for the storage of fingerprints except within the passport itself. This also meant that it could not be interpreted as providing a legal basis for the centralised storage of data collected or for the use of such data for purposes other than the prevention of illegal entry in the EU.83 The scope of the Visa Information System, on the other hand, is broader as data are stored centrally and law enforcement authorities have access to it.84 Following the ECJ judgment in Digital Rights Ireland and Seitlinger and Others on the validity of the Data Retention Directive,85 it is clear that the Visa Information System, as an instrument which envisages ‘mass data collection, storage of the data of a very large number of unsuspected persons and access and use of such data by law enforcement authorities’, is subject to the requirement of a high level of protection of personal data.86 In its judgment, the Court has clarified that these kind of measures will be assessed strictly with regard to their proportionality and necessity and their legality will require the existence of adequate safeguards.87

Article 14 Supporting documents 1. When applying for a uniform visa, the applicant shall present: (a) documents indicating the purpose of the journey; (b) documents in relation to accommodation, or proof of sufficient means to cover his accommodation; (c) documents indicating that the applicant possesses sufficient means of subsistence both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or that he is in a position to acquire such means lawfully, in accordance with Article 5(1)(c) and (3) of the Schengen Borders Code; (d) information enabling an assessment of the applicant’s intention to leave the territory of the Member States before the expiry of the visa applied for. 2. When applying for an airport transit visa, the applicant shall present: (a) documents in relation to the onward journey to the final destination after the intended airport transit; (b) information enabling an assessment of the applicant’s intention not to enter the territory of the Member States. 3. A non-exhaustive list of supporting documents which the consulate may request from the applicant in order to verify the fulfilment of the conditions listed in paragraphs 1 and 2 is set out in Annex II. 83 ECJ, Schwarz, C-291/12, EU:C:2013:670. See also ECJ, Willems and Others, C-446/12, C-447/12, C448/12 and C-449/12, pending, on whether the EU Passports Regulation (EC) No 2252/2004 (OJ 2004 L 385/1), should be interpreted as requiring the Member States to give a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of passports. 84 See Council Decision 2008/633/JHA (OJ 2008 L 218/129) and Council Decision 2013/392/EU (OJ 2013 L 198/45). 85 Directive 2006/24/EC (OJ 2006 L 105/54). 86 Council doc. 9009/14 of 5 May 2014, para 20, p. 8. 87 ECJ, Digital Rights Ireland and Seitlinger and Others, C-293/12, EU:C:2014:238.

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4. Member States may require applicants to present a proof of sponsorship and/or private accommodation by completing a form drawn up by each Member State. That form shall indicate in particular: (a) whether its purpose is proof of sponsorship and/or of accommodation; (b) whether the host is an individual, a company or an organisation; (c) the host’s identity and contact details; (d) the invited applicant(s); (e) the address of the accommodation; (f) the length and purpose of the stay; (g) possible family ties with the host. In addition to the Member State’s official language(s), the form shall be drawn up in at least one other official language of the institutions of the European Union. The form shall provide the person signing it with the information required pursuant to Article 37(1) of the VIS Regulation. A specimen of the form shall be notified to the Commission. 5. Within local Schengen cooperation the need to complete and harmonise the lists of supporting documents shall be assessed in each jurisdiction in order to take account of local circumstances. 6. Consulates may waive one or more of the requirements of paragraph 1 in the case of an applicant known to them for his integrity and reliability, in particular the lawful use of previous visas, if there is no doubt that he will fulfil the requirements of Article 5(1) of the Schengen Borders Code at the time of the crossing of the external borders of the Member States. Content I. II. III. IV.

Harmonization of supporting documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of sponsorship and/or private accommodation. . . . . . . . . . . . . . . . . . . . . . . Discretionary exemptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Free Movement Directive 2004/38/EC and compulsory exemptions

1 2 3 4

I. Harmonization of supporting documents Article 14(1) and (2) provides that an applicant for a uniform visa shall present 1 documents relating to the purpose of his journey,88 accommodation, sufficient means of subsistence and intention to leave the territory of the Member States before the expiry of the visa applied for. There is no formal substantive harmonization as to which supporting documents a visa applicant must present. This position has been justified in terms of the difficulties in drawing up detailed rules in a situation where there is great diversity of individual circumstances and local conditions worldwide. Lack of harmonization does however cause unequal treatment of applicants and visa shopping. The Regulation has nevertheless improved the pre-existing situation in that Article 14(3) envisages a nonexhaustive list of supporting documents which may be required by consulates. This list is contained in Annex II to the Regulation. The Visa Handbook also provides for detailed guidelines.89 It was expected that these guidelines would eventually be replaced by harmonized lists corresponding to local circumstances as a result of Local Schengen 88 Visa facilitations agreements may contain provisions on this matter. See, for example, Article 4 EUAzerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 89 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II, para 6.

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Cooperation as envisaged by Article 14(5). However, progress on this front has been limited. The Commission reports among the reasons for lack of progress ‘reluctance on the part of Member States at local level, seemingly unaware of the legal obligation to carry out this assessment’ and ‘lack of awareness by consulates of certain Member States regarding application of a common visa policy’.90 Under the Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4), the list of supporting documents in Annex II becomes exhaustive. Furthermore, under the proposal, the Commission is to establish the list of supporting documents to be used in each jurisdiction in order to take account of local circumstances by means of implementing acts, adopted under the ‘examination procedure’ (see below Articles 50–52 MN 1).91

II. Proof of sponsorship and/or private accommodation 2

Under Article 14(4), the Member States may also require applicants to present proof of sponsorship and/or private accommodation by completing a form which must meet a number of minimum requirements. Practices among the Member States vary widely in this respect, and it appears that many Member States have used the forms explicitly to impose the financial risks of an extended stay on the signee of the form. Also, while the information provided in this form is inserted in the Visa Information System, many Member States do not inform the signee of this as required by Article 37 of the Visa Information System (VIS) Regulation (EC) No 767/2008.92

III. Discretionary exemptions 3

Consulates have the power to waive some of the requirements on supporting documents in relation to applicants known to them for their ‘integrity and reliability’. However, as already mentioned in the context of Article 10(2), the Commission claims that the subjectivity of this notion has precluded its practical application by consulates. The issue is exacerbated by heavy reliance on outsourcing, as external service providers (or commercial intermediaries) are not entitled to assess the content of applications under Article 43(4). The Commission proposal introduces the possibility of providing exemptions in the case of applicants attending major international events in the territory of the Member States particularly important due to their tourism and/or cultural impact.93

IV. The Free Movement Directive 2004/38/EC and compulsory exemptions 4

Consistently with the general approach of the Regulation, Article 14 is silent on the position of third country nationals who are covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 9). The Visa Handbook clarifies that they may only be required to present documents establishing that they are beneficiaries of the 90 Commission Staff Working Document, SWD(2014) 101 final, p. 12–13. There have been only six Commission implementing decisions covering 16 instances of Local Schengen Cooperation (published on: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]) and some work is in progress in relation to other 30 instances of Local Schengen Cooperation. 91 Draft Article 51(2), Commission Proposal, COM(2014) 164 final. 92 OJ 2008 L 218/60. Commission Staff Working Document, SWD(2014) 101 final, p. 14. 93 Draft Article 13(10) Commission Proposal, COM(2014) 164 final.

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Directive.94 The Commission proposal, on the other hand, contains express provisions in this regard (see above Article 1 MN 9). Moreover, as explained in relation to Article 9, the proposal extends the same visa facilitations to third country nationals ‘close relatives’ of EU citizens residing in their Member State of nationality, and of EU citizens residing in a third country when they wish to visit together with their EU citizen relatives the Member State of which their EU citizen relatives are nationals. The same treatment is not extended to family members of third country nationals who are longterm residents of the EU.95 Visa facilitation agreements between the EU and third countries may however be relevant in this context.96 Article 13 of the Family Reunification Directive 2003/86/EC may also be relevant in certain circumstances (see above Article 1 MN 4 and Article 9 MN 4). In pursuance of its objective of introducing procedural facilitations for regular/ 5 frequent travellers, the Commission proposal (see above Article 1 MN 4) introduces the notion of ‘VIS registered regular traveller’ (i. e. a visa applicant registered in the VIS who has obtained two visas within 12 months prior to his application), and provides that VIS registered regular travellers, who have lawfully used the two previously obtained visas, will not be required to provide supporting documents in relation to accommodation, sufficient means of subsistence and intention to leave.97 This proposed amendment has however been opposed in the Council because of the ‘automaticity’ in visa issuing which it implies.98

Article 15 Travel medical insurance 1. Applicants for a uniform visa for one or two entries shall prove that they are in possession of adequate and valid travel medical insurance to cover any expenses which might arise in connection with repatriation for medical reasons, urgent medical attention and/or emergency hospital treatment or death, during their stay(s) on the territory of the Member States. 2. Applicants for a uniform visa for more than two entries (multiple entries) shall prove that they are in possession of adequate and valid travel medical insurance covering the period of their first intended visit. In addition, such applicants shall sign the statement, set out in the application form, declaring that they are aware of the need to be in possession of travel medical insurance for subsequent stays. 3. The insurance shall be valid throughout the territory of the Member States and cover the entire period of the person’s intended stay or transit. The minimum coverage shall be EUR 30 000. When a visa with limited territorial validity covering the territory of more than one Member State is issued, the insurance cover shall be valid at least in the Member States concerned. 4. Applicants shall, in principle, take out insurance in their country of residence. Where this is not possible, they shall seek to obtain insurance in any other country. 94 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III, para 3.6. 95 Draft Article 13(3) Commission Proposal, COM(2014) 164 final. 96 See for example Article 4 EU-Azerbaijan Visa Facilitation Agreement, on documentary evidence regarding the purpose of the journey (OJ 2014 L 128/49). 97 Draft Article 13(2) Commission Proposal, COM(2014) 164 final. 98 Council doc. 6093/15 of 13 February 2015, p. 3.

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When another person takes out insurance in the name of the applicant, the conditions set out in paragraph 3 shall apply. 5. When assessing whether the insurance cover is adequate, consulates shall ascertain whether claims against the insurance company would be recoverable in a Member State. 6. The insurance requirement may be considered to have been met where it is established that an adequate level of insurance may be presumed in the light of the applicant’s professional situation. The exemption from presenting proof of travel medical insurance may concern particular professional groups, such as seafarers, who are already covered by travel medical insurance as a result of their professional activities. 7. Holders of diplomatic passports shall be exempt from the requirement to hold travel medical insurance. 1

On the initiative of Greece, the requirement of travel medical insurance was introduced for visa applicants in October 2004. The Commission is now proposing to abolish this requirement both as it is considered disproportionate and as it is not an entry condition under the Schengen Borders Code Regulation (EC) No 562/2006, and thus it is not verified at the border to the effect that a visa holder may cancel the travel medical insurance once the visa is obtained.99 The Council, at working party level, has however expressed opposition to the deletion ‘because of large numbers of medical bills left unpaid by third country nationals in the Member States’.100

Article 16 Visa fee 1. Applicants shall pay a visa fee of EUR 60. 2. Children from the age of six years and below the age of 12 years shall pay a visa fee of EUR 35. 3. The visa fee shall be revised regularly in order to reflect the administrative costs. 4. The visa fee shall be waived for applicants belonging to one of the following categories: (a) children under six years; (b) school pupils, students, postgraduate students and accompanying teachers who undertake stays for the purpose of study or educational training; (c) researchers from third countries travelling for the purpose of carrying out scientific research as defined in Recommendation No 2005/761/EC of the European Parliament and of the Council of 28 September 2005 to facilitate the issue by the Member States of uniform short-stay visas for researchers from third countries travelling within the Community for the purpose of carrying out scientific research(21); (d) representatives of non-profit organisations aged 25 years or less participating in seminars, conferences, sports, cultural or educational events organised by nonprofit organisations. 5. The visa fee may be waived for: (a) children from the age of six years and below the age of 12 years; 99

Commission Staff Working Document, SWD(2014) 101 final, p. 15. Council doc. 6093/15 of 13 February 2015, p. 3. (21) OJ L 289, 3.11.2005, p. 23. 100

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Art. 17

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(b) holders of diplomatic and service passports; (c) participants aged 25 years or less in seminars, conferences, sports, cultural or educational events, organised by non-profit organisations. Within local Schengen cooperation, Members States shall aim to harmonise the application of these exemptions. 6. In individual cases, the amount of the visa fee to be charged may be waived or reduced when to do so serves to promote cultural or sporting interests as well as interests in the field of foreign policy, development policy and other areas of vital public interest or for humanitarian reasons. 7. The visa fee shall be charged in euro, in the national currency of the third country or in the currency usually used in the third country where the application is lodged, and shall not be refundable except in the cases referred to in Articles 18(2) and 19(3). When charged in a currency other than euro, the amount of the visa fee charged in that currency shall be determined and regularly reviewed in application of the euro foreign exchange reference rate set by the European Central Bank. The amount charged may be rounded up and consulates shall ensure under local Schengen cooperation that they charge similar fees. 8. The applicant shall be given a receipt for the visa fee paid. Article 15(4) and (5) provides for the categories which must and which may be 1 exempted from the visa fee. Furthermore, Article 15(6) provides for the possibility of individual exemptions or reductions on, inter alia, humanitarian grounds. The visa fee is not applicable to third country national family members of EU citizens who are covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 9). Visa facilitation agreements also provide for a reduced visa fee, which is to be waived for certain categories of persons (see above Article 1 MN 10).101 The Commission proposal on amending and recasting the Regulation extends the categories exempted from the visa fee to include minors under the age of 18, holders of diplomatic and service passports and ‘close relatives’ of EU citizens outside the scope of the Free Movement Directive 2004/38/EC (see above Article 1 MN 4).102 This has found some opposition in the Council.103

Article 17 Service fee 1. An additional service fee may be charged by an external service provider referred to in Article 43. The service fee shall be proportionate to the costs incurred by the external service provider while performing one or more of the tasks referred to in Article 43(6). 2. The service fee shall be specified in the legal instrument referred to in Article 43(2). 3. Within the framework of local Schengen cooperation, Member States shall ensure that the service fee charged to an applicant duly reflects the services offered by the external service provider and is adapted to local circumstances. Furthermore, they shall aim to harmonise the service fee applied. 101

See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). Draft Article 14(3), Commission Proposal, COM(2014) 164 final. 103 Council doc. 6093/15 of 13 February 2015, p. 3. 102

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4. The service fee shall not exceed half of the amount of the visa fee set out in Article 16(1), irrespective of the possible reductions in or exemptions from the visa fee as provided for in Article 16(2), (4), (5) and (6). 5. The Member State(s) concerned shall maintain the possibility for all applicants to lodge their applications directly at its/their consulates.

I. The possibility to lodge applications at consulates in cases of cooperation with external service providers and proposals for reform Article 17(5) contains an obligation for the Member States to maintain the possibility for all applicants to lodge their applications directly at their consulates when they cooperate with an external service provider for the purpose of collecting applications and biometrics in accordance with Article 43. Although Article 40(3) provides that cooperation with an external service provider is to be a ‘last resort’ measure for a Member State where cooperation with other Member States proves not to be appropriate, it appears that in practice cooperation with external service providers is widespread and the Member States’ preferred option. In this context, there have been numerous complaints to the Commission about the Member States’ violation of Article 17(5).104 2 Under the Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4), cooperation with external service providers is no longer a ‘last resort’ measure but becomes one of the possible organizational options.105 The general obligation to maintain the possibility for applicants to lodge their applications directly at the Member States’ consulates is deleted.106 Although the Commission proposal is silent on the issue, the obligation is to be maintained, as a matter of EU law, in relation to third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 8). This proposed amendment has been criticized on the ground that it makes it difficult for individuals who may be entitled to an LTV visa to have their applications considered by consulates.107 Under Article 43(6)(c), the role of external service providers is limited to ‘collecting data and applications (including collection of biometric identifiers) and transmitting the application to consulates’. Article 43(4) clearly provides that it is only the consulates which are entitled to examine and decide on applications. These provisions notwithstanding, it appears that external service providers do reject incomplete visa applications.108 The effect of such a course of action is to preclude incomplete visa applications from reaching and being considered by consulates, unless there is the possibility to lodge applications directly with the consulates. Under Article 19(4) consulates have the power to consider admissible ‘on humanitarian grounds or for reasons of national interests’ visa applications which do not meet the admissibility requirements in Article 19(1). Under Article 25(1)(a)(i) a Member State shall issue, exceptionally, LTV visas to visa applicants who do not fulfil the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) No 562/2006 when it ‘considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. 1

104

Commission Staff Working Document, SWD(2014) 101 final, p. 34. Draft Article 38(3), Commission Proposal, COM(2014) 164 final. 106 Draft Article 15, Commission Proposal, COM(2014) 164 final. 107 See Jensen, CEPS Paper in Liberty and Security No 68, particularly p. 26. 108 See, for example, Commission Staff Working Document, SWD(2014) 101 final, p. 34. 105

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Art. 19

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CHAPTER III Examination of and decision on an application Article 18 Verification of consular competence 1. When an application has been lodged, the consulate shall verify whether it is competent to examine and decide on it in accordance with the provisions of Articles 5 and 6. 2. If the consulate is not competent, it shall, without delay, return the application form and any documents submitted by the applicant, reimburse the visa fee, and indicate which consulate is competent.

Article 19 Admissibility 1. The competent consulate shall verify whether: the application has been lodged within the period referred to in Article 9(1), the application contains the items referred to in Article 10(3)(a) to (c), the biometric data of the applicant have been collected, and the visa fee has been collected. 2. Where the competent consulate finds that the conditions referred to in paragraph 1 have been fulfilled, the application shall be admissible and the consulate shall: – follow the procedures described in Article 8 of the VIS Regulation, and – further examine the application. Data shall be entered in the VIS only by duly authorised consular staff in accordance with Articles 6(1), 7, 9(5) and 9(6) of the VIS Regulation. 3. Where the competent consulate finds that the conditions referred to in paragraph 1 have not been fulfilled, the application shall be inadmissible and the consulate shall without delay: – return the application form and any documents submitted by the applicant, – destroy the collected biometric data, – reimburse the visa fee, and – not examine the application. 4. By way of derogation, an application that does not meet the requirements set out in paragraph 1 may be considered admissible on humanitarian grounds or for reasons of national interest. – – – –

Content I. The notion of admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Derogations and humanitarian visas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. The notion of admissibility Article 19(1) provides the basic elements for a visa application to be admitted for 1 examination. These basic elements reflect the general rules for lodging an application in Meloni

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Article 10, except that Article 19(1) does not include among the requirements for admissibility presentation of supporting documents and travel medical insurance. The notion of admissibility of an application was introduced to distinguish between rejections of incomplete applications, which are not supposed to be recorded in the VIS, and formal refusals, which are recorded in the VIS. However, there seems to be confusion on how the notion is to be applied in practice. Some consulates treat applications lacking supporting documents as incomplete/inadmissible while others count them as formal refusals and record them in the VIS. In this context, it was suggested to include presentation of supporting documents among the admissibility criteria, but there is in most cases no harmonization between consulates of what supporting documents an applicant must submit.109

II. The right of appeal 2

The right of appeal and the right to be notified of the reasons for visa refusal decisions envisaged by Article 32(2) and (3) do not expressly apply to inadmissible applications. The Commission has consistently held that the possibility of appeal in these cases would bring no added value as decisions have no legal effects or impact on future applications. In its original proposal for this Regulation, the Commission excluded the right of appeal expressly for inadmissible applications. However, this position has been criticized and has caused some problems for some Member States.110 As the Standing Committee of experts on international immigration, refugee and criminal law observes, ‘The reasons for declaring an application non-admissible may touch on important material issues. If a person is for an excusable reason not able to produce the additional information or documentation…or if the request for such information or documentation is unreasonable or arbitrary, this person may never be able to repair the deficiency of his visa application if he cannot invoke the impartial opinion of an independent judge’.111

III. Derogations and humanitarian visas 3

Article 19(4) establishes, by way of derogation, that an application that does not meet the general admissibility requirements ‘may’ still be considered admissible ‘on humanitarian grounds or for reasons of national interest’. This provision is linked to Article 25(1)(a)(i) which provides that LTV visas ‘shall’ be issued, ‘exceptionally’, to applicants who do not fulfil the entry conditions in the Schengen Borders Code Regulation (EC) No 562/2006, and hence the conditions for a uniform visas in Article 32(1)(a), when the Member State concerned ‘considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. Similar provisions are contained in Article 5(4)(c) of the Schengen Borders Code Regulation (EC) No 562/2006 which states that third country nationals who do not fulfil the entry conditions may be authorized by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Jensen describes Article 19(4) as a ‘filter’ for visa applications to be processed under Article 25(1).112 Although Articles 19(4) and 25(1) appear to be linked, there are inconsis109

Commission Staff Working Document, SWD(2014) 101 final, p. 18. For an overview see Meloni, EL Rev 35 (2009), p. 671, 692. 111 Standing Committee of experts on international migration, refugee and criminal law, ‘Note on the draft proposal for a Regulation establishing a Community Code on Visas’, 8 February 2007, para b.1. 112 Jensen, CEPS Paper in Liberty and Security No 68, p. 18. 110

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Art. 21

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tencies in the wording of the two provisions. Article 19(4) provides only for the possibility of treating an inadmissible application as admissible while Article 25(1), through the use of the word ‘shall’ and in the light of the ECJ judgment in Koushkaki,113 seems to create an obligation to issue LTV visas (see below Article 32 MN 3), albeit ‘exceptionally’ and when ‘the Member State concerned considers it necessary’ on the above mentioned grounds. Furthermore, the grounds for treating a prima facie inadmissible application as admissible and the grounds for issuing LTV visas also differ in that Article 19(4), unlike Article 25(1), does not include the Member States’ ‘international obligations’. It has therefore been recommended to ensure consistency between the wordings of the two articles and create a clearer link between them.114 As Jensen points out, ‘it is unclear whether there is a mandatory assessment of 4 protection needs and human rights issues under Articles 19(4) and 25 (1) when admissibility requirements and entry conditions are not met’.115 The answer depends ultimately on whether the EU and Member States’ refugee and human rights obligations so require (see Article 25 MN 3).

Article 20 Stamp indicating that an application is admissible 1. When an application is admissible, the competent consulate shall stamp the applicant’s travel document. The stamp shall be as set out in the model in Annex III and shall be affixed in accordance with the provisions of that Annex. 2. Diplomatic, service/official and special passports shall not be stamped. 3. The provisions of this Article shall apply to the consulates of the Member States until the date when the VIS becomes fully operational in all regions, in accordance with Article 48 of the VIS Regulation.

Article 21 Verification of entry conditions and risk assessment 1. In the examination of an application for a uniform visa, it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, and particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of the Member States and whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for. 2. In respect of each application, the VIS shall be consulted in accordance with Articles 8(2) and 15 of the VIS Regulation. Member States shall ensure that full use is made of all search criteria pursuant to Article 15 of the VIS Regulation in order to avoid false rejections and identifications. 3. While checking whether the applicant fulfils the entry conditions, the consulate shall verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the applicant’s justification for the purpose and conditions of the intended stay, and that he has sufficient means of subsistence, both for the duration of the 113

ECJ, Koushkaki, C-84/12, EU:C:2013:862. Jensen, CEPS Paper in Liberty and Security No 68, p. 7. 115 Jensen, CEPS Paper in Liberty and Security No 68, p. 7. 114

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intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is in a position to acquire such means lawfully; (c) whether the applicant is a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry; (d) that the applicant is not considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (e) that the applicant is in possession of adequate and valid travel medical insurance, where applicable. 4. The consulate shall, where applicable, verify the length of previous and intended stays in order to verify that the applicant has not exceeded the maximum duration of authorised stay in the territory of the Member States, irrespective of possible stays authorised under a national long-stay visa or a residence permit issued by another Member State. 5. The means of subsistence for the intended stay shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed, on the basis of the reference amounts set by the Member States in accordance with Article 34(1)(c) of the Schengen Borders Code. Proof of sponsorship and/or private accommodation may also constitute evidence of sufficient means of subsistence. 6. In the examination of an application for an airport transit visa, the consulate shall in particular verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the points of departure and destination of the third-country national concerned and the coherence of the intended itinerary and airport transit; (c) proof of the onward journey to the final destination. 7. The examination of an application shall be based notably on the authenticity and reliability of the documents submitted and on the veracity and reliability of the statements made by the applicant. 8. During the examination of an application, consulates may in justified cases call the applicant for an interview and request additional documents. 9. A previous visa refusal shall not lead to an automatic refusal of a new application. A new application shall be assessed on the basis of all available information. Content I. General scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The possibility of an interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Proposals for reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4

I. General scope 1

The ECJ clarified the purpose of Article 21 and its relationship with Article 32(1) on refusal of a visa in its judgment in Koushkaki (see below Article 32 MN 3). According to the ECJ: ‘…the purpose of Article 21 of the Visa Code is to determine general rules for the verification of entry conditions and risk assessment during the examination of an application for a uniform visa.

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Art. 21

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Thus, Article 21(1) sets out the factors which must be verified or which particular consideration must be given before any decision on an application for a uniform visa is taken, without thereby drawing up a precise list of the conditions for the issue of such a visa. The other paragraphs of that article, for their part, set out the methods which the competent authorities of the Member State concerned must use to verify the entry conditions and perform the risk assessment, depending on the situation with which they are faced. …. On the other hand, it is clear that Article 32(1) of the Visa Code establishes a list of grounds on which an application for a uniform visa must be rejected. It follows from the foregoing that, while Article 21(1) of the Visa Code requires the competent authorities to verify or assess certain factors, Article 32(1) of that code determines the conclusions which must be drawn from the result of that verification and that assessment, in the light of the grounds for refusal listed in the latter article’.116

The ECJ, furthermore, stressed the complexity of assessing the individual position of a visa applicant for the purpose of determining whether there is a ground for visa refusal under Article 32(1) which finds reflection in Article 21 conferring a wide discretion on the Member States’ authorities in the examination of visa applicants.117 Article 21(2) provides that in respect of each application the VIS is to be consulted to 2 check any previous applications and for the purpose of examining the application at hand. However, Article 21(9) states that a previous visa refusal shall not lead to an automatic refusal of a new application.

II. The possibility of an interview Article 21(8) states that ‘in justified cases’, which, according to the Visa Handbook, 3 includes cases when the examination of the visa application ‘does not allow for taking a final decision’,118 consulates may call the applicant for an interview and request additional documents. Under the Regulation and as clarified by the ECJ in Koushkaki,119 it is the visa applicant’s responsibility to provide the relevant supporting documents to demonstrate that he meets the entry conditions of the Schengen Borders Code Regulation (EC) No 562/2006. Article 21(8) establishes a discretion, not an obligation, for the consulate to request additional documents. However, some national courts have upheld challenges to visa refusal decisions by consulates based on lack of reliable information regarding the purpose and conditions of the stay. The Austrian High Administrative Court held in two cases that in the circumstances of the cases not granting the appliant the right to be heard before the visa is refused under the Regulation constituted a violation of procedural rules.120

III. Proposals for reform The Commission proposal on amending and recasting the Regulation provides that a 4 ‘VIS registered regular traveller’ (see above Article 1 MN 4) who has lawfully used the two previously obtained visas shall be presumed to fulfil the entry conditions regarding 116

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 27–28, 31–32. ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–63. 118 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, part II, para 7.11. 119 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 71–72. 120 See the Austrian High Administrative Court (Verwaltungsgerichtshof), 2011/21/0232, cited in Fundamental Rights Agency, Annual Report 2012, p. 93. See also Austrian High Administrative Court (Verwaltungsgerichtshof), 2010/21/0344, available at: http://www.ris.bka.gv.at/Vwgh/[last accessed 06 April 2015]. 117

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the risk of irregular immigration, the risk to the security of the Member States and the possession of sufficient means of subsistence. This presumption is reversible in individual cases. This proposed amendment has found opposition in the Council, which has criticised the ‘automaticity’ of the issuing of visas to this category.121 The proposal is silent in relation to third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC (see Article 1 MN 9).

Article 22 Prior consultation of central authorities of other Member States 1. A Member State may require the central authorities of other Member States to consult its central authorities during the examination of applications lodged by nationals of specific third countries or specific categories of such nationals. Such consultation shall not apply to applications for airport transit visas. 2. The central authorities consulted shall reply definitively within seven calendar days after being consulted. The absence of a reply within this deadline shall mean that they have no grounds for objecting to the issuing of the visa. 3. Member States shall notify the Commission of the introduction or withdrawal of the requirement of prior consultation before it becomes applicable. This information shall also be given within local Schengen cooperation in the jurisdiction concerned. 4. The Commission shall inform Member States of such notifications. 5. From the date of the replacement of the Schengen Consultation Network, as referred to in Article 46 of the VIS Regulation, prior consultation shall be carried out in accordance with Article 16(2) of that Regulation. 1

The provisions on prior consultation in Article 22 were carried over from the Common Consular Instructions (see above Article 1 MN 2) with the difference that the deadline for a reply has been shortened by Article 22 to seven calendar days and the list of the nationalities subject to prior consultation has been made public, although the identity of the Member States requiring such consultation is not. The provisions are complemented by the ex-post information provisions in Article 31. Prior consultation is required in relation to nationals of 30 countries. In some cases, it relates only to holders of certain official passports or to specific categories of individuals identified by ‘age and gender’.122 Article 39(3) reiterates however that consular authorities, while performing their tasks, shall respect the principle of non-discrimination, which is a fundamental norm of the EU legal order.123 The Commission reports that the ‘hit rate’ of such consultation is extremely low and that visas are rarely refused as a result of prior consultation.124 In the case of visa refusal, as Peers points out, an obligation for the consulted Member State to give reasons is necessarily implied in the Regulation as it would otherwise be impossible for the consulting Member State to satisfy its obligation to give reasons for the visa refusal decision and for the visa applicant to exercise his or her right of appeal under the Regulation.125 If the consulted Member State objects to the issue of a uniform visa, the consulting Member State has the power to issue a LTV visa under Article 25. 121

Council doc. 6093/2015 of 13 February 2015, p. 3. Commission Staff Working Document, SWD(2014) 101 final, p. 20. 123 Article 21 CFR; see also ECJ, Mangold, C-144/04, EU:C:205:709. 124 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 125 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261. 122

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Art. 23

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Article 23 Decision on the application 1. Applications shall be decided on within 15 calendar days of the date of the lodging of an application which is admissible in accordance with Article 19. 2. That period may be extended up to a maximum of 30 calendar days in individual cases, notably when further scrutiny of the application is needed or in cases of representation where the authorities of the represented Member State are consulted. 3. Exceptionally, when additional documentation is needed in specific cases, the period may be extended up to a maximum of 60 calendar days. 4. Unless the application has been withdrawn, a decision shall be taken to: (a) issue a uniform visa in accordance with Article 24; (b) issue a visa with limited territorial validity in accordance with Article 25; (c) refuse a visa in accordance with Article 32; or (d) discontinue the examination of the application and transfer it to the relevant authorities of the represented Member State in accordance with Article 8(2). The fact that fingerprinting is physically impossible, in accordance with Article 13(7)(b), shall not influence the issuing or refusal of a visa. Content I. Time limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Possible decisions and the right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Time limits Article 23(1), (2) and (3) contains deadlines for a decision on a visa application to be 1 reached. Visa facilitation agreements between the EU and third countries may provide for shorter deadlines (see above Article 1 MN 10).126 Visas to third country national family members of EU citizens covered by the Free Movement Directive 2008/34/EC must be issued, by virtue of Article 5(2) of such Directive, ‘as soon as possible and on the basis of an accelerated procedure’. The Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4 and 9) in this context is rather confusing. Draft article 20(3) provides for a 5 day mandatory time limit applicable only in relation to ‘core’ family members as referred to in Article 3(1) of the Directive, unlike all other visa facilitations in the proposal, which are applicable to both ‘core’ and ‘extended’ family members. The proposal extends this mandatory time limit to apply also in the case of ‘close’ relatives of EU citizens outside the scope of the Directive (see above Article 1 MN 4). Draft article 20(4) goes on to provide that the mandatory time limit applies as a ‘maximum’ in relation to family members as referred in Article 3 of the Directive, i. e. both ‘core’ and ‘extended’, but it is silent on family members outside the scope of the Directive, seemingly implying that in their case the mandatory time limit of 5 days does not apply as a ‘maximum’.

II. Possible decisions and the right of appeal Four possible decisions on a visa application are envisaged by Article 23(4): (a) the 2 issuing of a uniform visa in accordance with Article 24; (b) the issuing of an LTV in 126

See for example Article 7 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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accordance with Article 25; (c) the refusal of a visa in accordance with Article 32; ‘or’ (d) in cases of representation, the transfer of the applicant’s file to the represented Member State for a decision. The word ‘or’ seems to suggest that if a visa applicant applies for a uniform visa but is issued with an LTV visa instead, there is no decision refusing a uniform visa and therefore no right of appeal. Peers points out however that: ‘…in light of the obvious differences between LTV and uniform visas, the better view is that refusing an application for a uniform visa and issuing an LTV visa instead amounts to a refusal of the original application for the purpose of the [Visa] Code. This means that the obligation to notify the refusal and the reasons for it, and the right to appeal, are still applicable’.127

CHAPTER IV Issuing of the visa Article 24 Issuing of a uniform visa 1. The period of validity of a visa and the length of the authorised stay shall be based on the examination conducted in accordance with Article 21. A visa may be issued for one, two or multiple entries. The period of validity shall not exceed five years. In the case of transit, the length of the authorised stay shall correspond to the time necessary for the purpose of the transit. Without prejudice to Article 12(a), the period of validity of the visa shall include an additional ‘period of grace’ of 15 days. Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 2. Without prejudice to Article 12(a), multiple-entry visas shall be issued with a period of validity between six months and five years, where the following conditions are met: (a) the applicant proves the need or justifies the intention to travel frequently and/or regularly, in particular due to his occupational or family status, such as business persons, civil servants engaged in regular official contacts with Member States and EU institutions, representatives of civil society organisations travelling for the purpose of educational training, seminars and conferences, family members of citizens of the Union, family members of third-country nationals legally residing in Member States and seafarers; and (b) the applicant proves his integrity and reliability, in particular the lawful use of previous uniform visas or visas with limited territorial validity, his economic situation in the country of origin and his genuine intention to leave the territory of the Member States before the expiry of the visa applied for. 3. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. 1

Article 24(2)(a) and (b) provides the conditions under which multiple entry visas (MEVs) ‘shall’ be issued. The first condition, in Article 24(2)(a), is clear and precise to the effect that it should be possible in practice to assess whether an individual satisfies it. Article 24(2)(a) includes the only reference in the whole Regulation to ‘family members 127

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Art. 25

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of third country nationals legally residing in Member States’ and to ‘family members of citizens of the Union’ generally (see above Article 1 MN 4). The second condition, in Article 24(2)(b), concerns the applicant’s ability to prove his ‘integrity and reliability’. According to the Commission, as already mentioned in the context of Articles 10(2) and 14(6), this notion is not precise and is prone to subjective interpretation (see above Article 10 MN 4 and Article 14 MN 3). It may therefore be difficult for a visa applicant to claim to be entitled to an MEV. In this context, it also appears that, in cases where the visa application process has been outsourced in accordance with Article 43, some external service providers refused to accept applications for MEVs,128 notwithstanding that under Article 43(4) the consulates retain sole responsibility for examining and deciding on visa applications. The number of MEVs issued by the Member States appears to be growing steadily. However, the larger proportion of MEVs are issued in countries with which the EU has visa facilitation agreements, which make provision for the issue of such visas,129 and the Member States tend to be reluctant to issue MEVs with a validity longer than a year. The Commission proposal for amending and recasting the Regulation makes some 2 important changes to Article 24. It provides that an MEV valid for at least three years shall be issued to ‘VIS registered regular traveller’ who have lawfully used the two previously obtained visas (see above Article 1 MN 4). Once they have also used such an MEV lawfully, they are entitled to an MEV valid for five years provided that they lodge an application no later than one year after the expiry date of the first MEV. The Council has however criticised this proposed amendment because of the ‘automaticity’ it involves in the issuing of visas to this particular category.130 In other ways, the Commission proposal restricts the current scope of Article 24 drastically. It provides that an MEV valid for up to 5 years ‘may’, as opposed to the current ‘shall’, be issued to an applicant who proves the need or justifies the intention to travel frequently and/or regularly ‘provided that’ he proves his integrity and reliability. The current reference to ‘family members of citizens of the Union’ and ‘family members of third country nationals legally residing in Member States’ is deleted.131

Article 25 Issuing of a visa with limited territorial validity 1. A visa with limited territorial validity shall be issued exceptionally, in the following cases: (a) when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations, (i) to derogate from the principle that the entry conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled; (ii) to issue a visa despite an objection by the Member State consulted in accordance with Article 22 to the issuing of a uniform visa; or (iii) to issue a visa for reasons of urgency, although the prior consultation in accordance with Article 22 has not been carried out; or 128

Commission Staff Working Document, SWD(2014) 101 final, p. 34. See for example Article 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 130 Council doc. 6093/15 of 13 February 2015, p. 3. 131 Draft Article 21, Commission Proposal, COM(2014) 164 final. 129

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(b) when for reasons deemed justified by the consulate, a new visa is issued for a stay during the same 180-day period to an applicant who, over this 180-day period, has already used a uniform visa or a visa with limited territorial validity allowing for a stay of 90 days. 2. A visa with limited territorial validity shall be valid for the territory of the issuing Member State. It may exceptionally be valid for the territory of more than one Member State, subject to the consent of each such Member State. 3. If the applicant holds a travel document that is not recognised by one or more, but not all Member States, a visa valid for the territory of the Member States recognising the travel document shall be issued. If the issuing Member State does not recognise the applicant’s travel document, the visa issued shall only be valid for that Member State. 4. When a visa with limited territorial validity has been issued in the cases described in paragraph 1(a), the central authorities of the issuing Member State shall circulate the relevant information to the central authorities of the other Member States without delay, by means of the procedure referred to in Article 16(3) of the VIS Regulation. 5. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. Content I. II. III. IV.

Does Article 25 preclude the issue of a uniform visa?. . . . . . . . . . . . . . . . . . . . . . Rights of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Does Article 25 establish an obligation to issue LTV visas? . . . . . . . . . . . . . . . Statistics on LTV visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4

I. Does Article 25 preclude the issue of a uniform visa? 1

Article 25 governs the conditions for issuing Limited Territorial Validity (LTV) visas, which, under Article 2(4) are visas ‘valid for the territory of one or more Member States but not all Member States’. Article 25 is linked to Article 19(4). It is unclear whether Article 25(1), in the light of the term ‘shall’ in particular, has the effect of precluding the Member States from issuing uniform visas in all the cases listed. According to Peers, such an interpretation should be rejected because it would have the effect in practice of adding further grounds for uniform visa refusals to those already listed in Article 32(1), which, as clarified by the ECJ in Koushkaki (see below Article 32 MN 3), are exhaustive.132 In particular, such an interpretation would require, under Article 25(1)(a)(ii), refusing uniform visas in cases of ‘an objection by the Member State consulted’ in the context of prior consultation arrangements under Article 22, and in cases of an inability by a Member State to carry out prior consultation because of urgency, under Article 25(1)(a)(iii). Furthermore, Article 25(3) provides that LTV visas shall be issued in cases of applicants possessing documents which are not recognized by one or more Member States. Still, it could be argued that Article 25(1)(a)(ii) adds nothing to the grounds for uniform visa refusal in Article 32(1). This is because it is possible to argue that in prior consultation cases, the consulted Member State has still a duty to give the reasons for its objection to the issuing of a visa and those reasons must be among those envisaged in Article 32(1). To state otherwise would render the rights in Article 32(2) 132 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261. ECJ, Koushkaki, C-84/12, EU:C:2013:862.

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and (3) nugatory (see above Article 22 MN 1). The situation is however different with regard to Article 25(1)(a)(iii) and Article 25(3).

II. Rights of appeal On the basis of Article 23, it is unclear whether an applicant who is refused a uniform 2 visa and issued instead with an LTV visa can appeal against the uniform visa refusal in accordance with Article 32(3) (see above Article 23 MN 2). With regard to refusal of an LTV visa, the Regulation does not expressly provide for a right of appeal as in cases of uniform visa refusal, annulment and revocation. The significance of this omission is linked to the question of whether Article 25(1) establishes an obligation for the Member States to issue LTV visas when the relevant conditions are satisfied.

III. Does Article 25 establish an obligation to issue LTV visas? It has been argued that the reasoning of the ECJ in Koushkaki (see below Article 32 3 MN 3) can be applied by analogy to Article 25(1), particularly in light of the term ‘shall’ in that Article, to the effect that applicants who satisfy the relevant conditions for the issuing of LTV visas are entitled to such visas.133 It is however true that Article 25(1) envisages the issuing of LTV visas ‘exceptionally’ and ‘when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. With regard to the latter ground, Peers states that ‘arguably, the binding nature of the relevant international obligations,….override[s] the discretion suggested by the words “considers it necessary”’.134 In this context, it can be noted that while it is generally accepted that states are free to control the entry and residence of aliens into their territory as part of their sovereignty, state sovereignty in this area is not absolute. Principles of general international law and obligations arising out of treaties limit state discretion as to entry, transit, residence and expulsion of aliens.135 In the context of visas as an interdiction measure, the question which emerges with particular force is whether the prohibitions of refoulement in such instruments such as the Geneva Convention, the ECHR and the CFR may be applicable to such extraterritorial settings as visa issuing.136 It is generally accepted that Article 33(1) of the Geneva Convention establishing the principle of non-refoulement does not apply in the case of visa applications by individuals at a consulate in their country of origin because under Article 1(A)(2) of the Convention an individual needs to be outside his country of 133 Peers, External processing of applications for international protection in the EU, EU Law Analysis (2014), available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-loss-of-lives-near.html [last accessed 06 April 2015]; Jensen, CEPS Paper in Liberty and Security No 68, p. 16–17; ECJ, Koushkaki, C-84/12, EU:C:2013:862. 134 Peers, External processing of applications for international protection in the EU, EU Law Analysis (2014), available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-loss-of-lives-near.html [last accessed 06 April 2015]; Jensen, CEPS Paper in Liberty and Security No 68, p. 20. 135 For an overview, see Meloni, Visa Policy, p. 7–24. 136 This question has been considered in great depth by scholars. See for example Noll, IJRL 2005, p. 542; Goodwin-Gill/McAdam, The Refugee, p. 244–252; Lauterpacht/Bethlehem, in Feller/Tu¨rk/Nicholson (eds), Refugee Protection, p. 87, 109–128; Hathaway, The Rights of Refugees, p. 160–171; den Heijer, Europe and Extraterritorial Asylum, p. 120–141; Moreno Lax, EJML 2008, p. 315. On national courts’ attitude to the extraterritorial application of the Geneva Convention, see the US Supreme Court, Sale v Haitian Center Council, Judgment of 21 June 1993, (1993) 113 S.Ct 2549, paras 181–182; UK House of Lords, R (European Roma Rights Centre) v Immigration Officer at Prague Airport, Judgment of 9 December 2004, [2004] UKHL 55, paras 17,64,70.

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nationality to qualify for refugee status. Neither will Article 33(1) apply in the case of visa applications by individuals at a consulate in a third state when such a third state does not intend to remove the individuals concerned.137 More controversially, den Heijer submits that, on a literal interpretation, Article 33(1) does not cover excluding acts by a state when these acts are undertaken within a third state where prosecution is feared as ‘one cannot return … a person to the territory of a third state if that person already finds himself in that territory’.138 Lauterpacht and Bethlehem submit, on the other hand, that the application of the principle on non-refoulement in such circumstances depends on whether the refugee or asylum-seeker can be considered under the protection of the state concerned. According to them, ‘[t]his may arise, for example, in circumstances in which a refugee or asylum seeker takes refuge in the diplomatic mission of another State….’.139 Furthermore, there is disagreement among scholars as to whether Article 33(1) of the Convention can be triggered in the case of visa refusal to an individual at a consulate in a third states when such a third state is preparing the removal of the individual. Noll denies that this is the case on the ground that ‘the terms “expel” or “refouler”’ in Article 33(1) of the Geneva Convention ‘suggest a direct sovereign relationship between the removing agent and the territory from which removal takes place’.140 According to Hathaway, on the other hand, in line with basic principles of international law, the textual reading and the drafting history of the Geneva Convention, ‘[t]he small set of core refugee rights [including non-refoulement] subject to no [territorial] attachment requirement … applies to state parties which exercise de facto jurisdiction over refugees not physically present in their territory’.141 Goodwin-Gill and McAdam suggest that Article 33(1) can be triggered when denial of an entry visa ‘directly exposes and individual to a risk of refoulement’.142 As they state, ‘it is well established that the principle of non-refoulement includes protection from return to territories where the individual, although not directly at risk of persecution, torture, or cruel, inhuman or degrading treatment or punishment, faces a danger of being expelled to other territories where such a risk exists’. In such cases of ‘indirect’ or ‘chain’ refoulement, although the acts of the state which lead to the individual’s refoulement by another state cannot be described as refoulement per se, the state in question, as a matter of state responsibility, can still incur liability.143 With regard to the right of asylum in Article 18 of the CFR, which is applicable to the EU institutions and to the Member States when acting within the scope of EU law, according to Noll, writing in 2005, it is dubious whether it adds anything to Article 33(1) of the Geneva Convention.144 The scope of this provision is however still to be determined. The situation is different with regard to non-refoulement under the ECHR. Article 1 of the ECHR requires the Contracting Parties to ‘secure to everyone within their jurisdiction’ the rights in the Convention. In Bankovic´, the ECtHR, although holding that the jurisdictional competence of a state is primarily territorial, identified a number 137

Noll, IJRL 2005, p. 542, 555. Den Heijer, Europe and Extraterritorial Asylum, p. 132. 139 Lauterpacht/Bethlehem, in Feller/Tu ¨ rk/Nicholson (eds), Refugee Protection, p. 87, 122. 140 Noll, IJRL 2005, p. 542, 555. 141 Hathaway, The Rights of Refugees, p. 161. 142 Goodwin-Gill/McAdam, The Refugee, p. 252. See also Lauterpacht/Bethlehem, in Feller/Tu ¨ rk/ Nicholson (eds), Refugee Protection, p. 87, 109–128; Den Heijer, Europe and Extraterritorial Asylum, p. 122–132; Moreno Lax, EJML 2008, p. 315, 339–344. 143 Goodwin-Gill/McAdam, The Refugee, p. 252. 144 Noll, IJRL 2005, p. 542, 547–548. See however Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be granted Asylum in the Union’s law’, RQS 27 (2008), p. 33. 138

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of instances of extra-territorial jurisdiction by a state covered by the Convention, including activities of a state diplomatic and consular agents in third countries.145 In the context of the ECHR, jurisdiction is therefore to be interpreted as referring to an administrative rather than a geographical border.146 On this basis, it is generally submitted that Article 3 ECHR (and therefore Article 4 CFR with regard to the EU institutions and the Member States when applying EU law) requires Contracting Parties to grant visas through their diplomatic representations to applicants in certain situations.147 According to Noll, ‘[s]uch situations are characterized by a pressing need of protection in the state from which an entry visa is requested. In particular, there would be no other protection options accessible to the claimant in order to avoid subjection to treatment coming under the scope of article 3 ECHR’.148 He further suggests that visa applicants may have more difficulties to show that they fall within the protection afforded by Article 3 ECHR than asylum applicants who are present on state territory due to the different ‘degree of consumption demanded of a state in a situation of nonremoval and a situation of allowing entry’.149 Noll points out that in principle all human rights in the Convention and its Protocols may impact in this way the legality of visa refusal, the limitative element being the scope of the positive obligations under the rights in the situation at hand.150 In this context, den Heijer, who does not however deal expressing to the cases of visa refusal, introduces a distinction between cases where it is alleged that exclusion leads to an interference with ECHR rights in the country to which the individual is removed (‘foreign’ cases) and cases where the interference would be within the territory of the excluding country (‘domestic’ cases). He illustrates that, in ‘foreign’ (Soering type) cases, the ECtHR has shown considerable restraint in extending the scope of the Convention to cases in which other provisions than Articles 2 and 3 are at stake.151 According to the ECtHR, Article 5, for example, would apply to expulsion cases only if there was a ‘real risk of a flagrant breach of that Article’. A flagrant breach ‘would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention to bring him or her to trial’. It might also occur ‘if an applicant would be at risk of being imprisoned for a substantial period in the receiving state having previously been convicted after a flagrantly unfair trial’.152 Likewise, the ECtHR has found that Article 6 applies in expulsion cases only ‘where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country’. The ECtHR found that this high threshold was met, for example, when a real risk of admission of evidence obtained by 145 ECtHR, Decision of 12 December 2001 (GC), No. 52207/99, Bankovic ´ and Others v Belgium and Others, paras 58, 73. See also ECtHR, Judgment of 23 February 2012 (GC), No. 27765/09, Hirsi Jamaa and Others v Italy, paras 70–81. 146 Noll, IJRL 2005, p. 542, 567. 147 Noll, IJRL 2005, p. 542, 565; Moreno-Lax, EJML 2008, p. 315, 362. 148 Noll, IJRL 2005, p. 542, 564. See also ECtHR, Judgment of 7 July 1988, No. 14038/88, Soering v the United Kingdom. 149 Noll, IJRL 2005, p. 542, 569. In R (on the application of Band others) v Secretary of State for the Foreign and Commonwealth Office, Judgment of the 18 October 2004, [2004] EWCA Civ 1344, para 89, the UK Court of Appeal applied a very high threshold for engaging Article 3 ECHR in a diplomatic asylum case. According to the Court, the duty to provide refuge under Article 3 ECHR is to be offset by the receiving state right under international law to require surrender of a fugitive. Cases of visa refusals are however different from cases of diplimatic asylum in terms of the degree of interference by the sending state with the receiving state authority as deriving from its territorial jurisdiction. 150 Noll, IJRL 2005, p. 542, 565, 568. 151 Den Heijer, EJML 2008, p. 278. 152 ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman (Abu Qatada) v the United Kingdom, para 233.

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Part B III Art. 26

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torture was established.153 Den Heijer explains the higher threshold for the applicability of the Convention in ‘foreign cases’, which is made operational by a distinction between norms representing a fundamental value and norms representing ‘ordinary’ values, in terms of the extra-territorial factor at play.154 It remains true that even in ‘domestic’ cases the threshold for engaging ECHR rights, such as Article 8, in exclusion cases is high, unless the exclusion is solely for the purpose of preventing the individual from exercising such rights.155

IV. Statistics on LTV visas 4

Although no comprehensive statistics are available, it appears that the number of LTV visas issued by the Member States remains low (about 2 % of all visa issued in 2012),156 and they are issued primarily to bypass the prior consultation procedure in Article 22.157 It is also the case that 16 EU Member States have or have had Schengen visas available for humanitarian reasons.158

Article 26 Issuing of an airport transit visa 1. An airport transit visa shall be valid for transiting through the international transit areas of the airports situated on the territory of Member States. 2. Without prejudice to Article 12(a), the period of validity of the visa shall include an additional ‘period of grace’ of 15 days. Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 3. Without prejudice to Article 12(a), multiple airport transit visas may be issued with a period of validity of a maximum six months. 4. The following criteria in particular are relevant for taking the decision to issue multiple airport transit visas: (a) the applicant’s need to transit frequently and/or regularly; and (b) the integrity and reliability of the applicant, in particular the lawful use of previous uniform visas, visas with limited territorial validity or airport transit visas, his economic situation in his country of origin and his genuine intention to pursue his onward journey. 5. If the applicant is required to hold an airport transit visa in accordance with the provisions of Article 3(2), the airport transit visa shall be valid only for transiting through the international transit areas of the airports situated on the territory of the Member State(s) concerned. 6. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. 153 ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman (Abu Qatada) v United Kingdom, para 258–280. 154 Den Heijer, EJML 2008, p. 278, 313. 155 See the UK Court of Appeal, Judgment of 30 April 2002, R v Secretary of State for the Home Department, ex parte Louis Farrakhan [2002] EWCA Civ 606, para 55. 156 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]. 157 Commission Staff Working Document, SWD(2014) 101 final, p. 24; Meloni, European Law Review 2009, p. 671, 684. 158 Jensen, CEPS Paper in Liberty and Security No 68, p. 6.

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Art. 29

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Article 27 Filling in the visa sticker 1. When the visa sticker is filled in, the mandatory entries set out in Annex VII shall be inserted and the machine-readable zone filled in, as provided for in ICAO document 9303, Part 2. 2. Member States may add national entries in the ‘comments’ section of the visa sticker, which shall not duplicate the mandatory entries in Annex VII. 3. All entries on the visa sticker shall be printed, and no manual changes shall be made to a printed visa sticker. 4. Visa stickers may be filled in manually only in case of technical force majeure. No changes shall be made to a manually filled in visa sticker. 5. When a visa sticker is filled in manually in accordance with paragraph 4 of this Article, this information shall be entered into the VIS in accordance with Article 10(1)(k) of the VIS Regulation.

Article 28 Invalidation of a completed visa sticker 1. If an error is detected on a visa sticker which has not yet been affixed to the travel document, the visa sticker shall be invalidated. 2. If an error is detected after the visa sticker has been affixed to the travel document, the visa sticker shall be invalidated by drawing a cross with indelible ink on the visa sticker and a new visa sticker shall be affixed to a different page. 3. If an error is detected after the relevant data have been introduced into the VIS in accordance with Article 10(1) of the VIS Regulation, the error shall be corrected in accordance with Article 24(1) of that Regulation.

Article 29 Affixing a visa sticker 1. The printed visa sticker containing the data provided for in Article 27 and Annex VII shall be affixed to the travel document in accordance with the provisions set out in Annex VIII. 2. Where the issuing Member State does not recognise the applicant’s travel document, the separate sheet for affixing a visa shall be used. 3. When a visa sticker has been affixed to the separate sheet for affixing a visa, this information shall be entered into the VIS in accordance with Article 10(1)(j) of the VIS Regulation. 4. Individual visas issued to persons who are included in the travel document of the applicant shall be affixed to that travel document. 5. Where the travel document in which such persons are included is not recognised by the issuing Member State, the individual stickers shall be affixed to the separate sheets for affixing a visa.

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Article 30 Rights derived from an issued visa Mere possession of a uniform visa or a visa with limited territorial validity shall not confer an automatic right of entry. 1

Article 30 clarifies that a uniform or LTV visa does not entitle the holder to a right of entry. Thus, a visa holder can be sent back at the border if border authorities find that entry conditions are not fulfilled then.

Article 31 Information of central authorities of other Member States 1. A Member State may require that its central authorities be informed of visas issued by consulates of other Member States to nationals of specific third countries or to specific categories of such nationals, except in the case of airport transit visas. 2. Member States shall notify the Commission of the introduction or withdrawal of the requirement for such information before it becomes applicable. This information shall also be given within local Schengen cooperation in the jurisdiction concerned. 3. The Commission shall inform Member States of such notifications. 4. From the date referred to in Article 46 of the VIS Regulation, information shall be transmitted in accordance with Article 16(3) of that Regulation. 1

This ‘ex-post information’ procedure was introduced by the Regulation. Unlike the prior consultation procedure (see above Article 22), under this procedure individual Member States may require to be ‘informed’ about visas issued rather than consulted about visa applications. It was expected that this procedure would eventually supplant the prior consultation procedure, but this has not happened. Currently, there are 65 third countries on the ex-post information list, involving exchange of information on an extremely high number of visas. The Commission points out that, while the consequences of ex-post information are not settled by the Regulation (unlike for prior consultation), it appears that following ex-post information some Member States tend to annul or revoke visas issued by another Member State.159

Article 32 Refusal of a visa 1. Without prejudice to Article 25(1), a visa shall be refused: (a) if the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully; 159

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Art. 32

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(iv) has already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; or (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; or (b) if there are reasonable doubts as to the authenticity of the supporting documents submitted by the applicant or the veracity of their contents, the reliability of the statements made by the applicant or his intention to leave the territory of the Member States before the expiry of the visa applied for. 2. A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be conducted against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 4. In the cases referred to in Article 8(2), the consulate of the representing Member State shall inform the applicant of the decision taken by the represented Member State. 5. Information on a refused visa shall be entered into the VIS in accordance with Article 12 of the VIS Regulation. Article 32(1) lists the grounds under which a uniform visa ‘shall’ be refused by the 1 competent authorities of the Member States (see Article 35 below in relation to visas issued at the border). The Article states to be without prejudice to Article 25(1) on the issue of LTV visas on ‘humanitarian grounds, for reasons of national interest or because of international obligations’. Article 32(1) reflects Articles 5(1), (4)(c) and 13, on conditions and refusal of entry, of the Schengen Borders Code Regulation (EC) No 562/2006. However, unlike Article 13 of the Schengen Borders Code Regulation, Article 32(1) does not state to be ‘without prejudice to the application of special provisions concerning the right of asylum and to international protection…’. Similarly, there is nothing in the Regulation comparable to Article 3a of the Schengen Borders Code Regulation stating that ‘[w]hen applying the Regulation, the Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights…; relevant international law, including the Convention Relating to the Status of Refugees…; obligations relating to the access to international protection, in particular the principle of non-refoulement; and fundamental rights’. As explained above (see above Article 1 MN 11), this may reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) of the Geneva Convention applies in relation to asylum-seekers who have reached their borders, there is no general acceptance that such an obligation can be triggered in relation to visa issuing abroad, which is the very reason why visa requirements have proliferated as interdiction measures. However, as discussed above (see above Article 25 MN 3), excluding the Meloni

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application of Article 33(1) of the Geneva Convention in all cases may be problematic, and it is furthermore clear that obligations of non-refoulement may arise in the visa issuing context under the ECHR and consequently the CFR. 2 The refusal grounds under Article 32(1) echo the entry conditions listed in Article 5(1) of the Schengen Borders Code Regulation (EC) No 562/2006 except that there is no reference in Article 32(1) to possession of a ‘valid travel document’. This is so as possession of a valid travel document, which is defined in Article 12, is treated by the Regulation as one of the conditions for the visa application to be ‘admissible’ in the first place, under Article 19. Furthermore, the Regulation includes lack of possession of travel medical insurance as a ground for refusal. As explained above, the Commission has proposed to delete this ground since possession of travel medical insurance is not checked at the border at the time of entry, as the requirement is not among the entry conditions established by the Schengen Borders Code Regulation (EC) No 562/2006. The Council has however opposed the deletion (see above Article 15 MN 1). 3 In Koushkaki the ECJ held that the grounds for refusing a uniform visa in Article 32(1) are exhaustive to the effect that if none of them applies to a visa applicant he will be entitled to a uniform visa.160 The Court arrived to the same conclusions in relation to the Schengen Borders Code Regulation (EC) No 562/2006 in Air Baltic Corporation,161 and the Students Directive 2004/114/EC in Ben Alaya.162 The Court arrived at such conclusions by considering the context of Article 32, particularly the fact that a Member State under Article 34 may revoke or annul a visa issued by another Member States, and the objectives of the Regulation which include establishing the conditions for issuing uniform visas, facilitating legitimate travel, precluding visa shopping and preventing the different treatment of visa applicants.163 The Court however stressed that, as reflected in Article 21, the assessment of the individual position of a visa applicant with a view to determining whether there is a ground for refusal of his application, entails ‘complex evaluations based, inter alia, on the personality of that applicant, his integration in the country where he resides, the political, social and the economic situation of that country and the potential threat posed by the entry of that applicant to public policy, internal security, public health or the international relations of any of the Member States’.164 Accordingly, the competent authorities have under the Regulation a wide discretion in this respect as apparent from the very wording of Articles 21(1) and 32(1) ‘which oblige those authorities to “[assess] whether the applicant presents a risk of illegal immigration” and to give “particular consideration” to certain aspects of his situation and to determine whether there are “reasonable doubts” as regards certain factors’.165 4 The standard form in Annex VI, for notifying and motivating visa refusal decisions, contains 11 categories of broadly formulated reasons echoing the grounds for refusal in Article 32(1). With regard to the 9th ground for refusal (‘your intention to leave the territory of the Member States before the expiry of the visa could not be ascertained’), the Highest Administrative Court in Austria has, in three cases, insisted that consulates must explain the concrete reasons for doubting that an applicant intends to return so as to allow applicants to submit counter-evidence and benefit from an effective remedy.166 160

ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 62. 162 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 163 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 33–55. 164 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 56. 165 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 61. 166 Austria, Verwaltungsgerichtshof, Decision of 16 May 2013, 2012/21/0158; Decision of 2 August 2013, 2013/21/0057; Decision of 2 August 2013, 2013/21/0064, cited in Fundamental Rights Agency, Annual Report 2013, p. 70. 161

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Art. 33

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Part B III

Under Article 30 of the Free Movement Directive 2008/34/EC, family members of EU citizens are entitled to fully reasoned refusals listing all specific factual and legal grounds.167 The right of appeal against decisions to refuse a uniform visa and the relating right to 5 be notified of the grounds for such decisions in Article 32(2) and (3) were among the most significant innovations introduced by the Regulation.168 They extend to annulment and revocation decisions (see below Article 34(6) and (7)) but not expressly to decisions holding a visa application ‘inadmissible’ (see Article 19 MN 2), decisions refusing the extension of a visa under Article 33 and decisions refusing an LTV visa (see Article 25 MN 2). By virtue of Article 58, these provisions became effective one year after the entry into force of the Regulation as several Member States needed a transitional period to introduce the necessary domestic changes. The Regulation provides that these procedural rights are to be exercised in accordance with national law. National arrangements are however subject to Article 47 of the CFR on the right to an effective remedy and a fair trial.169 On this basis, in 2013, the Commission initiated formal infringement proceedings against five Member States which do not provide access to a judicial body for an appeal or have problematic short deadlines or very high fees to lodge an appeal.170

CHAPTER V Modification of an issued visa Article 33 Extension 1. The period of validity and/or the duration of stay of an issued visa shall be extended where the competent authority of a Member State considers that a visa holder has provided proof of force majeure or humanitarian reasons preventing him from leaving the territory of the Member States before the expiry of the period of validity of or the duration of stay authorised by the visa. Such an extension shall be granted free of charge. 2. The period of validity and/or the duration of stay of an issued visa may be extended if the visa holder provides proof of serious personal reasons justifying the extension of the period of validity or the duration of stay. A fee of EUR 30 shall be charged for such an extension. 3. Unless otherwise decided by the authority extending the visa, the territorial validity of the extended visa shall remain the same as that of the original visa. 4. The authority competent to extend the visa shall be that of the Member State on whose territory the third-country national is present at the moment of applying for an extension. 5. Member States shall notify to the Commission the authorities competent for extending visas. 6. Extension of visas shall take the form of a visa sticker. 167 See Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, part III, para 3.9. 168 Meloni, EL Rev 2009, p. 671, 690–695. 169 On judicial protection as a general principle of EU law see ECJ, Panayotova and Others, C-327/02, EU:C:2004:718. 170 Fundamental Rights Agency, Annual Report 2013, p. 70; Fundamental Rights Agency, Annual Report 2012, p. 91–92.

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7. Information on an extended visa shall be entered into the VIS in accordance with Article 14 of the VIS Regulation. 1

It could be argued that, on the basis of the judgment of the ECJ in Koushkaki (see above Article 32 MN 3),171 a visa holder is entitled under Article 33(1) to an extension of his visa if the relevant conditions are fulfilled. This is indeed the position taken in the Visa Handbook, which is non-legally binding. With regard to ‘humanitarian reasons’, the Visa Handbook mentions as examples ‘serious illness of the person concerned…or sudden serious illness or death of a close relative leaving in a Member State’. The Visa Handbook also clarifies that while under visa facilitation agreements between the EU and third countries it is mandatory to extend visas only in cases of force majeure, third country nationals covered by these agreements can benefit from the more generous provisions in the Regulation.172 It is more difficult to argue that Article 33(2) creates obligations to extend a visa. This is so both because of the word ‘may’ and because ‘serious personal reasons’ is not further defined, although some guidance is provided in the Visa Handbook. The Visa Handbook further provides that a visa fee can be charged when extending a visa under Article 33(2).173 Article 33 is silent on any right of appeal against decisions refusing the extension of a visa (see above Article 32 MN 5).

Article 34 Annulment and revocation 1. A visa shall be annulled where it becomes evident that the conditions for issuing it were not met at the time when it was issued, in particular if there are serious grounds for believing that the visa was fraudulently obtained. A visa shall in principle be annulled by the competent authorities of the Member State which issued it. A visa may be annulled by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such annulment. 2. A visa shall be revoked where it becomes evident that the conditions for issuing it are no longer met. A visa shall in principle be revoked by the competent authorities of the Member State which issued it. A visa may be revoked by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such revocation. 3. A visa may be revoked at the request of the visa holder. The competent authorities of the Member States that issued the visa shall be informed of such revocation. 4. Failure of the visa holder to produce, at the border, one or more of the supporting documents referred to in Article 14(3), shall not automatically lead to a decision to annul or revoke the visa. 5. If a visa is annulled or revoked, a stamp stating ‘ANNULLED’ or ‘REVOKED’ shall be affixed to it and the optically variable feature of the visa sticker, the security feature ‘latent image effect’ as well as the term ‘visa’ shall be invalidated by being crossed out. 6. A decision on annulment or revocation of a visa and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 171

ECJ, Koushkaki, C-84/12, EU:C:2013:862. Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part V, para 1.1. 173 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part V, para 1.2. 172

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Art. 35

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7. A visa holder whose visa has been annulled or revoked shall have the right to appeal, unless the visa was revoked at his request in accordance with paragraph 3. Appeals shall be conducted against the Member State that has taken the decision on the annulment or revocation and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 8. Information on an annulled or a revoked visa shall be entered into the VIS in accordance with Article 13 of the VIS Regulation. In Air Baltic Corporation, consistently with its judgment in Koushkaki (see above 1 Article 32 MN 3), the ECJ clarified that the grounds for annulling or revoking a visa under Article 34(1) and (2) are exhaustive.174 Consequently, the competent authorities of a Member State shall annul or revoke a visa only on the basis of one of the grounds for visa refusal in Article 32(1) (or Article 35 in cases of visas issued at the border). Accordingly, in Air Baltic Corporation, the fact that the visa was affixed on a passport which had been ‘cancelled’ by the issuing authority of a third country did not make the visa automatically ‘invalid’, and could not constitute a ground for annulling or revoking the visa under Article 34 as it is not expressly mentioned there.175 On the other hand, annulment or revocation of a visa is not a precondition to treat the staying of a visa holder as ‘irregular’. In the case of PPU – Vo, the ECJ clarified that criminal prosecution by the authorities of a Member State of an individual for assisting illegal immigration does not require the prior annulment of the visas obtained fraudulently from the authorities of another Member States by those smuggled.176 Furthermore, under Article 34(1) and (2), annulment or revocation of a visa requires ‘evidence’ respectively that the conditions for issuing the visas were not met at the time when the visa was issued or are no longer met. For annulment this will be the case in particular if there are ‘serious grounds’ for believing that the visa was fraudulently obtained. This has been interpreted in some national cases as a high threshold to the effect that a mere ‘initial suspicion’ that the visa had been fraudulently obtained was treated as insufficient to reach the required degree of probability of ‘serious grounds’ for visa annulment.177 Article 34(6) and (7) provides for an individual right to be notified with the reasons for visa annulment or revocation and for a right of appeal against such decisions (see above Article 32 MN 5).

CHAPTER VI Visas issued at the external borders Article 35 Visas applied for at the external border 1. In exceptional cases, visas may be issued at border crossing points if the following conditions are satisfied: (a) the applicant fulfils the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code; 174

ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155; ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155. 176 ECJ, PPU – Vo, C-83/12, EU:C:2012:202. 177 Germany, Higher Administrative Court of Saxony, 3rd Senate, 3 B 151/12t, OVG Saxony, cited in Fundamental Rights Agency, Annual Report 2012, p. 94. 175

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(b) the applicant has not been in a position to apply for a visa in advance and submits, if required, supporting documents substantiating unforeseeable and imperative reasons for entry; and (c) the applicant’s return to his country of origin or residence or transit through States other than Member States fully implementing the Schengen acquis is assessed as certain. 2. Where a visa is applied for at the external border, the requirement that the applicant be in possession of travel medical insurance may be waived when such travel medical insurance is not available at that border crossing point or for humanitarian reasons. 3. A visa issued at the external border shall be a uniform visa, entitling the holder to stay for a maximum duration of 15 days, depending on the purpose and conditions of the intended stay. In the case of transit, the length of the authorised stay shall correspond to the time necessary for the purpose of the transit. 4. Where the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code are not fulfilled, the authorities responsible for issuing the visa at the border may issue a visa with limited territorial validity, in accordance with Article 25(1)(a) of this Regulation, for the territory of the issuing Member State only. 5. A third-country national falling within a category of persons for whom prior consultation is required in accordance with Article 22 shall, in principle, not be issued a visa at the external border. However, a visa with limited territorial validity for the territory of the issuing Member State may be issued at the external border for such persons in exceptional cases, in accordance with Article 25(1)(a). 6. In addition to the reasons for refusing a visa as provided for in Article 32(1) a visa shall be refused at the border crossing point if the conditions referred to in paragraph 1(b) of this Article are not met. 7. The provisions on justification and notification of refusals and the right of appeal set out in Article 32(3) and Annex VI shall apply. 1

Article 35 is drafted so as to establish an obligation for the Member States to refuse uniform visas at the border when certain conditions are not fulfilled and a discretion to issue such visas when such conditions are fulfilled. Article 35(1) establishes the conditions that an applicant must satisfy to be issued with a uniform visa at the border. The terms ‘may’ and ‘in exceptional cases’ clearly suggest that the Member States retain discretion to issue uniform visas at the border when the relevant conditions are satisfied. Furthermore, the condition in Article 35(1)(b) is capable of different interpretations and the terms ‘unforeseeable and imperative reasons’ seem to establish a high threshold. On the other hand, the term ‘shall’ in Article 35(6) establishes an obligation for the Member States to refuse visas at the border for the reasons listed in Article 32(1). These reasons correspond to the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) 562/2006 and further include lack of travel medical insurance. However, by virtue of Article 35(2) the requirement that an applicant be in possession of travel medical insurance may be waived for visas issued at the border when travel medical insurance is not available at that border crossing point or for humanitarian reasons. Article 35(6) establishes that a visa must also be refused at the border when the condition in Article 35(1)(b) is not met. Article 35(5) further establishes that in principle visas at the border must be refused to third country nationals belonging to a category subject to prior consultation under Article 22. 172

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Art. 36

Visa Code Regulation (EC) No 810/2009

Part B III

Accordingly, because Article 35(1) expressly confers discretion on the Member States to issue visas at the border, it is not possible to apply the Koushkaki judgment (see above Article 32 MN 3) and visa applicants will not be entitled to a visa at the border when they fulfil the relevant conditions.178 Article 35(4) and (5) provides that Member States ‘may’ issue LTV visas at the 2 border, in accordance with Article 25(1)(a) to applicants who do not fulfil the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) No 562/2006 and applicants subject to prior consultation. In any case, entry of third country nationals at the external border remains subject to the relevant EU and international law as Articles 3a and 13 of the Schengen Borders Code Regulation (EC) No 562/2006 recognize (see above Epiney/Egbuna-Joss, Schengen Borders Code Regulation (EC) No 562/2006, Article 3a MN 1 et seq. and Article 13 MN 1), although, as a result of carrier sanctions, the circumstances where a third country national may be able to reach the borders of the Member States without a visa, when required to have one, will be limited. In MRAX, the ECJ held that, by virtue of what is now the Free Movement Directive 2008/34/EC, ‘read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health…’.179 The Commission in its proposal to amend and recast the Regulation (see above 3 Article 1 MN 4) provides for the possibility for the Member States to set up a temporary scheme to issue visas at the external border with a view to promoting short term tourism.180

Article 36 Visas issued to seafarers in transit at the external border 1. A seafarer who is required to be in possession of a visa when crossing the external borders of the Member States may be issued with a visa for the purpose of transit at the border where: (a) he fulfils the conditions set out in Article 35(1); and (b) he is crossing the border in question in order to embark on, re-embark on or disembark from a ship on which he will work or has worked as a seafarer. 2. Before issuing a visa at the border to a seafarer in transit, the competent national authorities shall comply with the rules set out in Annex IX, Part 1, and make sure that the necessary information concerning the seafarer in question has been exchanged by means of a duly completed form for seafarers in transit, as set out in Annex IX, Part 2. 3. This Article shall apply without prejudice to Article 35(3), (4) and (5).

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ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, MRAX, C-459/99, EU:C:2002:461, para 62. 180 Draft Article 33, Commission Proposal, COM(2014) 164 final. 179

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Part B III Art. 39

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TITLE IV ADMINISTRATIVE MANAGEMENT AND ORGANISATION Article 37 Organisation of visa sections 1. Member States shall be responsible for organising the visa sections of their consulates. In order to prevent any decline in the level of vigilance and to protect staff from being exposed to pressure at local level, rotation schemes for staff dealing directly with applicants shall be set up, where appropriate. Particular attention shall be paid to clear work structures and a distinct allocation/division of responsibilities in relation to the taking of final decisions on applications. Access to consultation of the VIS and the SIS and other confidential information shall be restricted to a limited number of duly authorised staff. Appropriate measures shall be taken to prevent unauthorised access to such databases. 2. The storage and handling of visa stickers shall be subject to adequate security measures to avoid fraud or loss. Each consulate shall keep an account of its stock of visa stickers and register how each visa sticker has been used. 3. Member States’ consulates shall keep archives of applications. Each individual file shall contain the application form, copies of relevant supporting documents, a record of checks made and the reference number of the visa issued, in order for staff to be able to reconstruct, if need be, the background for the decision taken on the application. Individual application files shall be kept for a minimum of two years from the date of the decision on the application as referred to in Article 23(1).

Article 38 Resources for examining applications and monitoring of consulates 1. Member States shall deploy appropriate staff in sufficient numbers to carry out the tasks relating to the examining of applications, in such a way as to ensure reasonable and harmonised quality of service to the public. 2. Premises shall meet appropriate functional requirements of adequacy and allow for appropriate security measures. 3. Member States’ central authorities shall provide adequate training to both expatriate staff and locally employed staff and shall be responsible for providing them with complete, precise and up-to-date information on the relevant Community and national law. 4. Member States’ central authorities shall ensure frequent and adequate monitoring of the conduct of examination of applications and take corrective measures when deviations from the provisions of this Regulation are detected.

Article 39 Conduct of staff 1. Member States’ consulates shall ensure that applicants are received courteously. 174

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Art. 40

Visa Code Regulation (EC) No 810/2009

Part B III

2. Consular staff shall, in the performance of their duties, fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures. 3. While performing their tasks, consular staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 39 establishes an obligation for staff to receive visa applicants courteously and 1 respect human dignity and the principle of non-discrimination, a fundamental norm of the EU legal order.181 When the Member States rely on external service providers under Article 43, they are under an obligation to ensure that they also respect these provisions.

Article 40 Forms of cooperation 1. Each Member State shall be responsible for organising the procedures relating to applications. In principle, applications shall be lodged at a consulate of a Member State. 2. Member States shall: (a) equip their consulates and authorities responsible for issuing visas at the borders with the required material for the collection of biometric identifiers, as well as the offices of their honorary consuls, whenever they make use of them, to collect biometric identifiers in accordance with Article 42; and/or (b) cooperate with one or more other Member States, within the framework of local Schengen cooperation or by other appropriate contacts, in the form of limited representation, co-location, or a Common Application Centre in accordance with Article 41. 3. In particular circumstances or for reasons relating to the local situation, such as where: (a) the high number of applicants does not allow the collection of applications and of data to be organised in a timely manner and in decent conditions; or (b) it is not possible to ensure a good territorial coverage of the third country concerned in any other way; 3. and where the forms of cooperation referred to in paragraph 2(b) prove not to be appropriate for the Member State concerned, a Member State may, as a last resort, cooperate with an external service provider in accordance with Article 43. 4. Without prejudice to the right to call the applicant for a personal interview, as provided for in Article 21(8), the selection of a form of organisation shall not lead to the applicant being required to appear in person at more than one location in order to lodge an application. 5. Member States shall notify to the Commission how they intend to organise the procedures relating to applications in each consular location. Article 40 establishes possible forms of cooperation to ensure consular coverage by the 1 Member States. These forms of cooperation, unlike representation under Article 8, relate only to the collection of applications and biometric identifiers. Co-location and Common Application Centres are further defined in Article 41. It appears that these options 181

Articles 1 and 21 CFR.

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are hardly used by the Member States which consider representation under Article 8 and cooperation with an external service provider under Article 43 as the cheapest and easiest form of cooperation.182 Nevertheless, Article 40(3) currently provides that cooperation with external service providers is a ‘last resort’ measure. The Commission has proposed to delete this provision together with the Member States’ obligation in Article 17(5) to maintain direct access to their consulates in cases of cooperation with external service providers (see above Article 8 MN 2, Article 17 MN 2).

Article 41 Cooperation between Member States 1. Where ‘co-location’ is chosen, staff of the consulates of one or more Member States shall carry out the procedures relating to applications (including the collection of biometric identifiers) addressed to them at the consulate of another Member State and share the equipment of that Member State. The Member States concerned shall agree on the duration of and conditions for the termination of the co-location as well as the proportion of the visa fee to be received by the Member State whose consulate is being used. 2. Where ‘Common Application Centres’ are established, staff of the consulates of two or more Member States shall be pooled in one building in order for applicants to lodge applications (including biometric identifiers). Applicants shall be directed to the Member State competent for examining and deciding on the application. Member States shall agree on the duration of and conditions for the termination of such cooperation as well as the cost-sharing among the participating Member States. One Member State shall be responsible for contracts in relation to logistics and diplomatic relations with the host country. 3. In the event of termination of cooperation with other Member States, Member States shall assure the continuity of full service.

Article 42 Recourse to honorary consuls 1. Honorary consuls may also be authorised to perform some or all of the tasks referred to in Article 43(6). Adequate measures shall be taken to ensure security and data protection. 2. Where the honorary consul is not a civil servant of a Member State, the performance of those tasks shall comply with the requirements set out in Annex X, except for the provisions in point D(c) of that Annex. 3. Where the honorary consul is a civil servant of a Member State, the Member State concerned shall ensure that requirements comparable to those which would apply if the tasks were performed by its consulate are applied.

Article 43 Cooperation with external service providers 1. Member States shall endeavour to cooperate with an external service provider together with one or more Member States, without prejudice to public procurement and competition rules. 182

176

Commission Staff Working Document, SWD(2014) 101 final, p. 32.

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Art. 43

Visa Code Regulation (EC) No 810/2009

Part B III

2. Cooperation with an external service provider shall be based on a legal instrument that shall comply with the requirements set out in Annex X. 3. Member States shall, within the framework of local Schengen cooperation, exchange information about the selection of external service providers and the establishment of the terms and conditions of their respective legal instruments. 4. The examination of applications, interviews (where appropriate), the decision on applications and the printing and affixing of visa stickers shall be carried out only by the consulate. 5. External service providers shall not have access to the VIS under any circumstances. Access to the VIS shall be reserved exclusively to duly authorised staff of consulates. 6. An external service provider may be entrusted with the performance of one or more of the following tasks: (a) providing general information on visa requirements and application forms; (b) informing the applicant of the required supporting documents, on the basis of a checklist; (c) collecting data and applications (including collection of biometric identifiers) and transmitting the application to the consulate; (d) collecting the visa fee; (e) managing the appointments for appearance in person at the consulate or at the external service provider; (f) collecting the travel documents, including a refusal notification if applicable, from the consulate and returning them to the applicant. 7. When selecting an external service provider, the Member State(s) concerned shall scrutinise the solvency and reliability of the company, including the necessary licences, commercial registration, company statutes, bank contracts, and ensure that there is no conflict of interests. 8. The Member State(s) concerned shall ensure that the external service provider selected complies with the terms and conditions assigned to it in the legal instrument referred to in paragraph 2. 9. The Member State(s) concerned shall remain responsible for compliance with data protection rules for the processing of data and shall be supervised in accordance with Article 28 of Directive 95/46/EC. Cooperation with an external service provider shall not limit or exclude any liability arising under the national law of the Member State(s) concerned for breaches of obligations with regard to the personal data of applicants or the performance of one or more of the tasks referred to in paragraph 6. This provision is without prejudice to any action which may be taken directly against the external service provider under the national law of the third country concerned. 10. The Member State(s) concerned shall provide training to the external service provider, corresponding to the knowledge needed to offer an appropriate service and sufficient information to applicants. 11. The Member State(s) concerned shall closely monitor the implementation of the legal instrument referred to in paragraph 2, including: (a) the general information on visa requirements and application forms provided by the external service provider to applicants; (b) all the technical and organisational security measures required to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the cooperation involves

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the transmission of files and data to the consulate of the Member State(s) concerned, and all other unlawful forms of processing personal data; (c) the collection and transmission of biometric identifiers; (d) the measures taken to ensure compliance with data protection provisions. To this end, the consulate(s) of the Member State(s) concerned shall, on a regular basis, carry out spot checks on the premises of the external service provider. 12. In the event of termination of cooperation with an external service provider, Member States shall ensure the continuity of full service. 13. Member States shall provide the Commission with a copy of the legal instrument referred to in paragraph 2.

Article 44 Encryption and secure transfer of data 1. In the case of representation arrangements between Member States and cooperation of Member States with an external service provider and recourse to honorary consuls, the represented Member State(s) or the Member State(s) concerned shall ensure that the data are fully encrypted, whether electronically transferred or physically transferred on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned. 2. In third countries which prohibit encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned, the represented Members State(s) or the Member State(s) concerned shall not allow the representing Member State or the external service provider or the honorary consul to transfer data electronically. In such a case, the represented Member State(s) or the Member State(s) concerned shall ensure that the electronic data are transferred physically in fully encrypted form on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned by a consular officer of a Member State or, where such a transfer would require disproportionate or unreasonable measures to be taken, in another safe and secure way, for example by using established operators experienced in transporting sensitive documents and data in the third country concerned. 3. In all cases the level of security for the transfer shall be adapted to the sensitive nature of the data. 4. The Member States or the Community shall endeavour to reach agreement with the third countries concerned with the aim of lifting the prohibition against encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned.

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Art. 47

Visa Code Regulation (EC) No 810/2009

Part B III

Article 45 Member States’ cooperation with commercial intermediaries 1. Member States may cooperate with commercial intermediaries for the lodging of applications, except for the collection of biometric identifiers. 2. Such cooperation shall be based on the granting of an accreditation by Member States’ relevant authorities. The accreditation shall, in particular, be based on the verification of the following aspects: (a) the current status of the commercial intermediary: current licence, the commercial register, contracts with banks; (b) existing contracts with commercial partners based in the Member States offering accommodation and other package tour services; (c) contracts with transport companies, which must include an outward journey, as well as a guaranteed and fixed return journey. 3. Accredited commercial intermediaries shall be monitored regularly by spot checks involving personal or telephone interviews with applicants, verification of trips and accommodation, verification that the travel medical insurance provided is adequate and covers individual travellers, and wherever deemed necessary, verification of the documents relating to group return. 4. Within local Schengen cooperation, information shall be exchanged on the performance of the accredited commercial intermediaries concerning irregularities detected and refusal of applications submitted by commercial intermediaries, and on detected forms of travel document fraud and failure to carry out scheduled trips. 5. Within local Schengen cooperation, lists shall be exchanged of commercial intermediaries to which accreditation has been given by each consulate and from which accreditation has been withdrawn, together with the reasons for any such withdrawal. Each consulate shall make sure that the public is informed about the list of accredited commercial intermediaries with which it cooperates.

Article 46 Compilation of statistics Member States shall compile annual statistics on visas, in accordance with the table set out in Annex XII. These statistics shall be submitted by 1 March for the preceding calendar year.

Article 47 Information to the general public 1. Member States’ central authorities and consulates shall provide the general public with all relevant information in relation to the application for a visa, in particular: (a) the criteria, conditions and procedures for applying for a visa; (b) the means of obtaining an appointment, if applicable; (c) where the application may be submitted (competent consulate, Common Application Centre or external service provider); Meloni

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Part B III Art. 48

Entry and Border Controls

(d) accredited commercial intermediaries; (e) the fact that the stamp as provided for in Article 20 has no legal implications; (f) the time limits for examining applications provided for in Article 23(1), (2) and (3); (g) the third countries whose nationals or specific categories of whose nationals are subject to prior consultation or information; (h) that negative decisions on applications must be notified to the applicant, that such decisions must state the reasons on which they are based and that applicants whose applications are refused have a right to appeal, with information regarding the procedure to be followed in the event of an appeal, including the competent authority, as well as the time limit for lodging an appeal; (i) that mere possession of a visa does not confer an automatic right of entry and that the holders of visa are requested to present proof that they fulfil the entry conditions at the external border, as provided for in Article 5 of the Schengen Borders Code. 2. The representing and represented Member State shall inform the general public about representation arrangements as referred to in Article 8 before such arrangements enter into force.

TITLE V LOCAL SCHENGEN COOPERATION Article 48 Local Schengen cooperation between Member States’ consulates 1. In order to ensure a harmonised application of the common visa policy taking into account, where appropriate, local circumstances, Member States’ consulates and the Commission shall cooperate within each jurisdiction and assess the need to establish in particular: (a) a harmonised list of supporting documents to be submitted by applicants, taking into account Article 14 and Annex II; (b) common criteria for examining applications in relation to exemptions from paying the visa fee in accordance with Article 16(5) and matters relating to the translation of the application form in accordance with Article 11(5); (c) an exhaustive list of travel documents issued by the host country, which shall be updated regularly. If in relation to one or more of the points (a) to (c), the assessment within local Schengen cooperation confirms the need for a local harmonised approach, measures on such an approach shall be adopted pursuant to the procedure referred to in Article 52(2). 2. Within local Schengen cooperation a common information sheet shall be established on uniform visas and visas with limited territorial validity and airport transit visas, namely, the rights that the visa implies and the conditions for applying for it, including, where applicable, the list of supporting documents as referred to in paragraph 1(a). 3. The following information shall be exchanged within local Schengen cooperation: (a) monthly statistics on uniform visas, visas with limited territorial validity, and airport transit visas issued, as well as the number of visas refused; 180

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Art. 51

Visa Code Regulation (EC) No 810/2009

Part B III

(b) with regard to the assessment of migratory and/or security risks, information on: (i) the socioeconomic structure of the host country; (ii) sources of information at local level, including social security, health insurance, fiscal registers and entry-exit registrations; (iii) the use of false, counterfeit or forged documents; (iv) illegal immigration routes; (v) refusals; (c) information on cooperation with transport companies; (d) information on insurance companies providing adequate travel medical insurance, including verification of the type of coverage and possible excess amount. 4. Local Schengen cooperation meetings to deal specifically with operational issues in relation to the application of the common visa policy shall be organised regularly among Member States and the Commission. These meetings shall be convened within the jurisdiction by the Commission, unless otherwise agreed at the request of the Commission. Single-topic meetings may be organised and sub-groups set up to study specific issues within local Schengen cooperation. 5. Summary reports of local Schengen cooperation meetings shall be drawn up systematically and circulated locally. The Commission may delegate the drawing up of the reports to a Member State. The consulates of each Member State shall forward the reports to their central authorities. On the basis of these reports, the Commission shall draw up an annual report within each jurisdiction to be submitted to the European Parliament and the Council. 6. Representatives of the consulates of Member States not applying the Community acquis in relation to visas, or of third countries, may on an ad hoc basis be invited to participate in meetings for the exchange of information on issues relating to visas. Article 48(1) establishes that local Schengen cooperation and the Commission may 1 assess the need for a common approach in relation to supporting documents, exemptions from the visa fee, translation of the application forms and the list of travel documents issued by the host country. Measures in these fields will be adopted according to the ‘regulatory procedure’ as envisaged in Article 52. The Commission reports however that progress on harmonized lists of supporting documents has been limited (see above Article 14 MN 1).

TITLE VI FINAL PROVISIONS Article 49 Arrangements in relation to the Olympic Games and Paralympic Games Member States hosting the Olympic Games and Paralympic Games shall apply the specific procedures and conditions facilitating the issuing of visas set out in Annex XI.

Article 51 Instructions on the practical application of the Visa Code Operational instructions on the practical application of the provisions of this Regulation shall be drawn up in accordance with the procedure referred to in Article 52(2). Meloni

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Part B III Art. 53

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Article 52 Committee procedure 1. The Commission shall be assisted by a committee (the Visa Committee). 2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/ 468/EC shall apply, having regard to the provisions of Article 8 thereof and provided that the implementing measures adopted in accordance with this procedure do not modify the essential provisions of this Regulation. The period laid down in Article 5(6) of Decision 1999/468/EC shall be three months. 3. Where reference is made to this paragraph, Articles 5a(1) to (4) and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. 1

Article 50 governs amendments to non-essential elements of the Regulation and amendments to 9 of the 12 Annexes to the Regulation. These amendments are to be adopted as implementing acts under the ‘regulatory procedure with scrutiny’ referred to in Article 52(3). This procedure has been applied once. Article 51 provides that operational instructions on the practical application of the Regulation are to be adopted as implementing acts according to the ‘regulatory procedure’ referred in Article 52(2). Following the adoption of Regulation (EU) No 182/2011, on rules and general principles for control of the Commission’s exercise of implementing powers,183 the Commission has proposed to amend these provisions. In accordance with Article 290 TFEU, the ‘delegated acts’ procedure applies in respect of the list of third countries whose nationals require ATVs and the list of residence permits exempting the holder from the ATV requirement. Operational instructions on the practical application of the provisions of the Regulation are to be adopted in accordance with the ‘examination procedure’. Moreover, the Commission will adopt, in accordance with the ‘examination procedure’ implementing acts establishing the list of supporting documents to be used in each jurisdiction, details for filling in and affixing visa stickers and rules on issuing visas to seafarers at the borders.184

Article 53 Notification 1. Member States shall notify the Commission of: (a) representation arrangements referred to in Article 8; (b) third countries whose nationals are required by individual Member States to hold an airport transit visa when passing through the international transit areas of airports situated on their territory, as referred to in Article 3; (c) the national form for proof of sponsorship and/or private accommodation referred to in Article 14(4), if applicable; (d) the list of third countries for which prior consultation referred to in Article 22(1) is required; (e) the list of third countries for which information referred to in Article 31(1) is required; 183 184

182

OJ 2011 L 55/13. Draft Articles 48–51, Commission Proposal, COM(2014) 164 final.

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Art. 54

Visa Code Regulation (EC) No 810/2009

Part B III

(f) the additional national entries in the ‘comments’ section of the visa sticker, as referred to in Article 27(2); (g) authorities competent for extending visas, as referred to in Article 33(5); (h) the forms of cooperation chosen as referred to in Article 40; (i) statistics compiled in accordance with Article 46 and Annex XII. 2. The Commission shall make the information notified pursuant to paragraph 1 available to the Member States and the public via a constantly updated electronic publication.

Article 54 Amendments to Regulation (EC) No 767/2008 Regulation (EC) No 767/2008 is hereby amended as follows: 1. Article 4(1) shall be amended as follows: (a) point (a) shall be replaced by the following: ‘(a) “uniform visa” as defined in Article 2(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community code on Visas (Visa Code)(22); (b) point (b) shall be deleted; (c) point (c) shall be replaced by the following: ‘(c) “airport transit visa” as defined in Article 2(5) of Regulation (EC) No 810/ 2009’; (d) point (d) shall be replaced by the following: ‘(d) “visa with limited territorial validity” as defined in Article 2(4) of Regulation (EC) No 810/2009’; (e) point (e) shall be deleted; 2. in Article 8(1), the words ‘On receipt of an application’, shall be replaced by the following: ‘When the application is admissible according to Article 19 of Regulation (EC) No 810/2009’; 3. Article 9 shall be amended as follows: (a) the heading shall be replaced by the following: ‘Data to be entered on application’; (b) paragraph 4 shall be amended as follows: (i) point (a) shall be replaced by the following: ‘(a) surname (family name), surname at birth (former family name(s)), first name(s) (given name(s)); date of birth, place of birth, country of birth, sex;’; (ii) point (e) shall be deleted; (iii) point (g) shall be replaced by the following: ‘(g) Member State(s) of destination and duration of the intended stay or transit;’; (iv) point (h) shall be replaced by the following: ‘(h) main purpose(s) of the journey;’; (v) point (i) shall be replaced by the following: ‘(i) intended date of arrival in the Schengen area and intended date of departure from the Schengen area;’; (22)

OJ L 243, 15.9.2009, p. 1.

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Part B III Art. 54

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(vi)

point (j) shall be replaced by the following: ‘(j) Member State of first entry;’; (vii) point (k) shall be replaced by the following: ‘(k) the applicant’s home address;’; (viii) in point (l), the word ‘school’ shall be replaced by: ‘educational establishment’; (ix) in point (m), the words ‘father and mother’ shall be replaced by ‘parental authority or legal guardian’; 4. the following point shall be added to Article 10(1): ‘(k) if applicable, the information indicating that the visa sticker has been filled in manually.’; 5. in Article 11, the introductory paragraph shall be replaced by the following: ‘Where the visa authority representing another Member State discontinues the examination of the application, it shall add the following data to the application file:’; 6. Article 12 shall be amended as follows: (a) in paragraph 1, point (a) shall be replaced by the following: ‘(a) status information indicating that the visa has been refused and whether that authority refused it on behalf of another Member State;’; (b) paragraph 2 shall be replaced by the following: ‘2. The application file shall also indicate the ground(s) for refusal of the visa, which shall be one or more of the following: (a) the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully; (iv) has already stayed for three months during the current six-month period on the territory of the Member States on a basis of a uniform visa or a visa with limited territorial validity; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; (b) the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable; (c) the applicant’s intention to leave the territory of the Member States before the expiry of the visa could not be ascertained; (d) sufficient proof that the applicant has not been in a position to apply for a visa in advance justifying application for a visa at the border was not provided.’; 7. Article 13 shall be replaced by the following: ‘Article 13 Data to be added for a visa annulled or revoked 184

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Art. 55

Visa Code Regulation (EC) No 810/2009

Part B III

1. Where a decision has been taken to annul or to revoke a visa, the visa authority that has taken the decision shall add the following data to the application file: (a) status information indicating that the visa has been annulled or revoked; (b) authority that annulled or revoked the visa, including its location; (c) place and date of the decision. 2. The application file shall also indicate the ground(s) for annulment or revocation, which shall be: (a) one or more of the ground(s) listed in Article 12(2); (b) the request of the visa holder to revoke the visa.’; 8. Article 14 shall be amended as follows: (a) paragraph 1 shall be amended as follows: (i) the introductory paragraph shall be replaced by the following: ‘1. Where a decision has been taken to extend the period of validity and/or the duration of stay of an issued visa, the visa authority which extended the visa shall add the following data to the application file:’; (ii) point (d) shall be replaced by the following: ‘(d) the number of the visa sticker of the extended visa;’; (iii) point (g) shall be replaced by the following: ‘(g) the territory in which the visa holder is entitled to travel, if the territorial validity of the extended visa differs from that of the original visa;’; (b) in paragraph 2, point (c) shall be deleted; 9. in Article 15(1), the words ‘extend or shorten the validity of the visa’ shall be replaced by ‘or extend the visa’; 10. Article 17 shall be amended as follows: (a) point 4 shall be replaced by the following: ‘4. Member State of first entry;’; (b) point 6 shall be replaced by the following: ‘6. the type of visa issued;’; (c) point 11 shall be replaced by the following: ‘11. main purpose(s) of the journey;’; 11. in Article 18(4)(c), Article 19(2)(c), Article 20(2)(d), Article 22(2)(d), the words ‘or shortened’ shall be deleted; 12. in Article 23(1)(d), the word ‘shortened’ shall be deleted.

Article 55 Amendments to Regulation (EC) No 562/2006 Annex V, Part A of Regulation (EC) No 562/2006 is hereby amended as follows: (a) point 1(c), shall be replaced by the following: ‘(c) annul or revoke the visas, as appropriate, in accordance with the conditions laid down in Article 34 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community code on visas (Visa Code)(23); (b) point 2 shall be deleted.

(23)

OJ L 243, 15.9.2009, p. 1.

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Part B III Art. 57

Entry and Border Controls

Article 56 Repeals 1. Articles 9 to 17 of the Convention implementing the Schengen Agreement of 14 June 1985 shall be repealed. 2. The following shall be repealed: (a) Decision of the Schengen Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/ Com-ex (99) 13 (the Common Consular Instructions, including the Annexes); (b) Decisions of the Schengen Executive Committee of 14 December 1993 extending the uniform visa (SCH/Com-ex (93) 21) and on the common principles for cancelling, rescinding or shortening the length of validity of the uniform visa (SCH/Com-ex (93) 24), Decision of the Schengen Executive Committee of 22 December 1994 on the exchange of statistical information on the issuing of uniform visas (SCH/Com-ex (94) 25), Decision of the Schengen Executive Committee of 21 April 1998 on the exchange of statistics on issued visas (SCH/ Com-ex (98) 12) and Decision of the Schengen Executive Committee of 16 December 1998 on the introduction of a harmonised form providing proof of invitation, sponsorship and accommodation (SCH/Com-ex (98) 57); (c) Joint Action 96/197/JHA of 4 March 1996 on airport transit arrangements(24); (d) Council Regulation (EC) No 789/2001 of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for examining visa applications(25); (e) Council Regulation (EC) No 1091/2001 of 28 May 2001 on freedom of movement with a long-stay visa(26); (f) Council Regulation (EC) No 415/2003 of 27 February 2003 on the issue of visas at the border, including the issue of such visas to seamen in transit(27); (g) Article 2 of Regulation (EC) No 390/2009 of the European Parliament and of the Council of 23 April 2009 amending the Common Consular Instructions on visas for diplomatic and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications(28). 3. References to repealed instruments shall be construed as references to this Regulation and read in accordance with the correlation table in Annex XIII.

Article 57 Monitoring and evaluation 1. Two years after all the provisions of this Regulation have become applicable, the Commission shall produce an evaluation of its application. This overall evaluation shall include an examination of the results achieved against objectives and of the implementation of the provisions of this Regulation, without prejudice to the reports referred to in paragraph 3. (24)

OJ OJ (26) OJ (27) OJ (28) OJ (25)

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Art. 58

Visa Code Regulation (EC) No 810/2009

Part B III

2. The Commission shall transmit the evaluation referred to in paragraph 1 to the European Parliament and the Council. On the basis of the evaluation, the Commission shall submit, if necessary, appropriate proposals with a view to amending this Regulation. 3. The Commission shall present, three years after the VIS is brought into operation and every four years thereafter, a report to the European Parliament and to the Council on the implementation of Articles 13, 17, 40 to 44 of this Regulation, including the implementation of the collection and use of biometric identifiers, the suitability of the ICAO standard chosen, compliance with data protection rules, experience with external service providers with specific reference to the collection of biometric data, the implementation of the 59-month rule for the copying of fingerprints and the organisation of the procedures relating to applications. The report shall also include, on the basis of Article 17(12), (13) and (14) and of Article 50(4) of the VIS Regulation, the cases in which fingerprints could factually not be provided or were not required to be provided for legal reasons, compared with the number of cases in which fingerprints were taken. The report shall include information on cases in which a person who could factually not provide fingerprints was refused a visa. The report shall be accompanied, where necessary, by appropriate proposals to amend this Regulation. 4. The first of the reports referred to in paragraph 3 shall also address the issue of the sufficient reliability for identification and verification purposes of fingerprints of children under the age of 12 and, in particular, how fingerprints evolve with age, on the basis of the results of a study carried out under the responsibility of the Commission.

Article 58 Entry into force 1. This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. 2. It shall apply from 5 April 2010. 3. Article 52 and Article 53(1)(a) to (h) and (2) shall apply from 5 October 2009. 4. As far as the Schengen Consultation Network (Technical Specifications) is concerned, Article 56(2)(d) shall apply from the date referred to in Article 46 of the VIS Regulation. 5. Article 32(2) and (3), Article 34(6) and (7) and Article 35(7) shall apply from 5 April 2011. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

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Part B III Annex I

Entry and Border Controls

ANNEX I

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Annex I

Visa Code Regulation (EC) No 810/2009

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Part B III Annex II

Entry and Border Controls

ANNEX II Non-exhaustive list of supporting documents The supporting documents referred to in Article 14, to be submitted by visa applicants may include the following: A. DOCUMENTATION RELATING TO THE PURPOSE OF THE JOURNEY 1. for business trips:

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Annex II

Visa Code Regulation (EC) No 810/2009

Part B III

(a) an invitation from a firm or an authority to attend meetings, conferences or events connected with trade, industry or work; (b) other documents which show the existence of trade relations or relations for work purposes; (c) entry tickets for fairs and congresses, if appropriate; (d) documents proving the business activities of the company; (e) documents proving the applicant’s employment status in the company; 2. for journeys undertaken for the purposes of study or other types of training: (a) a certificate of enrolment at an educational establishment for the purposes of attending vocational or theoretical courses within the framework of basic and further training; (b) student cards or certificates of the courses to be attended; 3. for journeys undertaken for the purposes of tourism or for private reasons: (a) documents relating to accommodation: – an invitation from the host if staying with one, – a document from the establishment providing accommodation or any other appropriate document indicating the accommodation envisaged; (b) documents relating to the itinerary: – confirmation of the booking of an organised trip or any other appropriate document indicating the envisaged travel plans, – in the case of transit: visa or other entry permit for the third country of destination; tickets for onward journey; 4. for journeys undertaken for political, scientific, cultural, sports or religious events or other reasons: – invitation, entry tickets, enrolments or programmes stating (wherever possible) the name of the host organisation and the length of stay or any other appropriate document indicating the purpose of the journey; 5. for journeys of members of official delegations who, following an official invitation addressed to the government of the third country concerned, participate in meetings, consultations, negotiations or exchange programmes, as well as in events held in the territory of a Member State by intergovernmental organisations: – a letter issued by an authority of the third country concerned confirming that the applicant is a member of the official delegation travelling to a Member State to participate in the abovementioned events, accompanied by a copy of the official invitation; 6. for journeys undertaken for medical reasons: – an official document of the medical institution confirming necessity for medical care in that institution and proof of sufficient financial means to pay for the medical treatment. B. DOCUMENTATION ALLOWING FOR THE ASSESSMENT OF THE APPLICANT’S INTENTION TO LEAVE THE TERRITORY OF THE MEMBER STATES 1. reservation of or return or round ticket; 2. proof of financial means in the country of residence; 3. proof of employment: bank statements; 4. proof of real estate property; 5. proof of integration into the country of residence: family ties; professional status. C. DOCUMENTATION IN RELATION TO THE APPLICANT’S FAMILY SITUATION 1. consent of parental authority or legal guardian (when a minor does not travel with them); 2. proof of family ties with the host/inviting person. Meloni

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Part B III Annex VI

Entry and Border Controls

ANNEX III UNIFORM FORMAT AND USE OF THE STAMP INDICATING THAT A VISA APPLICATION IS ADMISSIBLE Not reprinted here

ANNEX IV Common list of third countries listed in Annex I to Regulation (EC) No 539/2001, whose nationals are required to be in possession of an airport transit visa when passing through the international transit area of airports situated on the territory of the Member States AFGHANISTAN BANGLADESH DEMOCRATIC REPUBLIC OF THE CONGO ERITREA ETHIOPIA GHANA IRAN IRAQ NIGERIA PAKISTAN SOMALIA SRI LANKA

ANNEX V LIST OF RESIDENCE PERMITS ENTITLING THEIR HOLDERS TO TRANSIT THROUGH THE AIRPORTS OF MEMBER STATES WITHOUT BEING REQUIRED TO HOLD AN AIRPORT TRANSIT VISA Not reprinted here

ANNEX VI STANDARD FORM FOR NOTIFYING AND MOTIVATING REFUSAL, ANNULMENT OR REVOCATION OF A VISA (1) REFUSAL/ANNULMENT/REVOCATION OF VISA Ms/Mr, The Embassy/Consulate-General/Consulate/[other competent authority] in [on behalf of (name of represented Member State)]; [Other competent authority] of The authorities responsible for checks on persons at has/have

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Annex VI

Visa Code Regulation (EC) No 810/2009

Part B III

examined your visa application; examined your visa, number:, issued: [day/month/year]. The visa has been refused The visa has been annulled The visa has been revoked This decision is based on the following reason(s): 1. a false/counterfeit/forged travel document was presented 2. justification for the purpose and conditions of the intended stay was not provided 3. you have not provided proof of sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted, or you are not in a position to acquire such means lawfully 4. you have already stayed for three months during the current six-month period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity 5. an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by (indication of Member State) 6. one or more Member State(s) consider you to be a threat to public policy, internal security, public health as defined in Article 2(19) of Regulation (EC) No 562/ 2006 (Schengen Borders Code) or the international relations of one or more of the Member States) 7. proof of holding an adequate and valid travel medical insurance was not provided 8. the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable 9. your intention to leave the territory of the Member States before the expiry of the visa could not be ascertained (1) No logo is required for Norway, Iceland and Switzerland.

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Part B III Annex XIII

Entry and Border Controls

ANNEX VII FILLING IN THE VISA STICKER ANNEX VIII AFFIXING THE VISA STICKER ANNEX IX ANNEX X LIST OF MINIMUM REQUIREMENTS TO BE INCLUDED IN THE LEGAL INSTRUMENT IN THE CASE OF COOPERATION WITH EXTERNAL SERVICE PROVIDERS ANNEX XI SPECIFIC PROCEDURES AND CONDITIONS FACILITATING THE ISSUING OF VISAS TO MEMBERS OF THE OLYMPIC FAMILY PARTICIPATING IN THE OLYMPIC GAMES AND PARALYMPIC GAMES ANNEX XII ANNUAL STATISTICS ON UNIFORM VISAS, VISAS WITH LIMITED TERRITORIAL VALIDITY AND AIRPORT TRANSIT VISAS ANNEX XIII CORRELATION TABLE Not reprinted here.

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IV. Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union Official Journal L 349, 25/11/2004, p. 1–11. Selected Bibliography: Baldaccini, ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’ in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff, 2010); Mitisilegas, ‘Border Security in the European Union: Towards Centralized Controls and Maximum Surveillance’, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice: EU Immigration and Asylum Law and Policy (Hart, 2007); Mungianu, ‘Frontex: Towards a Common Policy on External Border Control’ EJML 15 (2013), p. 359–385; Neal, ‘Securitization and Risk at the EU Border: The Origins of Frontex’, JCMS 47 (2009), p. 333–356; Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary) Vol 1: Visas and Border Controls (Martinus Nijhoff, 2012); Trevisanut, ‘Which Borders for the EU Immigration Policy? Yardsticks of International Protection for EU Joint Borders Management’ in: Azoulai/de Vries (eds), EU Migration Law: Legal Complexities and Political Rationales (OUP, 2014), p. 106.

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 62(2)(a) and 66 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament(1), Having regard to the opinion of the European Economic and Social Committee(2), Whereas: (1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen. (2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States. (3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency). (4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures. (1) (2)

Opinion of 9 March 2004 (not yet published in the Official Journal). OJ C 108, 30.4.2004, p. 97.

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(5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction. (6) Based on a common integrated risk analysis model, the Agency should carry out risk analyses in order to provide the Community and the Member States with adequate information to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of external borders. (7) The Agency should provide training at European level for national instructors of border guards and additional training and seminars related to control and surveillance at external borders and removal of third-country nationals illegally present in the Member States for officers of the competent national services. The Agency may organise training activities in cooperation with Member States on their territory. (8) The Agency should follow up on the developments in scientific research relevant for its field and disseminate this information to the Commission and to the Member States. (9) The Agency should manage lists of technical equipment provided by the Member States, thereby contributing to the ‘pooling’ of material resources. (10) The Agency should also support Member States in circumstances requiring increased technical and operational assistance at external borders. (11) In most Member States, the operational aspects of return of third-country nationals illegally present in the Member States fall within the competencies of the authorities responsible for controlling external borders. As there is a clear added value in performing these tasks at European level, the Agency should, subject to the Community return policy, accordingly provide the necessary assistance for organising joint return operations of Member States and identify best practices on the acquisition of travel documents and the removal of third-country nationals illegally present in the territories of the Member States. (12) For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with Europol, the competent authorities of third countries and the international organisations competent in matters covered by this Regulation in the framework of working arrangements concluded in accordance with the relevant provisions of the Treaty. The Agency should facilitate the operational cooperation between Member States and third countries in the framework of the external relations policy of the European Union. (13) Building upon the experiences of the External Borders Practitioners’ Common Unit and the operational and training centres specialised in the different aspects of control and surveillance of land, air and maritime borders respectively, which have been set up by Member States, the Agency may itself create specialised branches responsible for dealing with land, air and maritime borders. (14) The Agency should be independent as regards technical matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Community body having legal personality and exercising the implementing powers, which are conferred upon it by this Regulation.

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Part B IV

Frontex Regulation (EC) No 2007/2004

(15) The Commission and the Member States should be represented within a Management Board in order to control effectively the functions of the Agency. The Board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. This Board should be entrusted with the necessary powers to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision making by the Agency and appoint the Executive Director and his/her deputy. (16) In order to guarantee the full autonomy and independence of the Agency, it should be granted an autonomous budget whose revenue comes essentially from a contribution from the Community. The Community budgetary procedure should be applicable as far as the Community contribution and any other subsidies chargeable to the general budget of the European Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors. (17) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(3) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF)(4). (18) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(5) should apply to the Agency. (19) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(6) applies to the processing of personal data by the Agency. (20) The development of the policy and legislation on external border control and surveillance remains a responsibility of the EU institutions, in particular the Council. Close coordination between the Agency and these institutions should be guaranteed. (21) Since the objectives of this Regulation, namely the need for creating an integrated management of operational cooperation at the external borders of the Member States of the European Union, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (22) This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. (23) As regards Iceland and Norway, this Regulation constitutes a development of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis, which fall within the area referred to in (3)

OJ OJ (5) OJ (6) OJ (4)

L 136, 31.5.1999, p. 1. L 136, 31.5.1999, p. 15. L 145, 31.5.2001, p. 43. L 8, 12.1.2001, p. 1.

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Entry and Border Controls

Article 1, point A of Council Decision 1999/437/EC(7) on certain arrangements for the application of that Agreement. Consequently, delegations of the Republic of Iceland and the Kingdom of Norway should participate as members of the Management Board of the Agency, albeit with limited voting rights. In order to determine the further modalities allowing for the full participation of the Republic of Iceland and the Kingdom of Norway in the activities of the Agency, a further arrangement should be concluded between the Community and these States. (24) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation whether it will implement it in its national law or not. (25) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(8). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (26) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(9). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (27) The Agency should facilitate the organisation of operational actions in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, in accordance with modalities to be decided on a case-by-case basis by the Management Board. To that end, representatives of Ireland and the United Kingdom should be invited to attend all the meetings of the Management Board in order to allow them to participate fully in the deliberations for the preparation of such operational actions. (28) A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar. (29) The suspension of the applicability of this Regulation to the borders of Gibraltar does not imply any change in the respective positions of the States concerned, HAS ADOPTED THIS REGULATION:

(7)

OJ L 176, 10.7.1999, p. 31. OJ L 131, 1.6.2000, p. 43. (9) OJ L 64, 7.3.2002, p. 20. (8)

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Art. 1

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CHAPTER I SUBJECT MATTER Article 1 Establishment of the Agency 1. A European Agency for the Management of Operational Cooperation at the External Borders (the Agency) is hereby established with a view to improving the integrated management of the external borders of the Member States of the European Union. 2. While considering that the responsibility for the control and surveillance of external borders lies with the Member States, the Agency, as a body of the Union as defined in Article 15 and in accordance with Article 19 of this Regulation, shall facilitate and render more effective the application of existing and future Union measures relating to the management of external borders, in particular the Schengen Borders Code established by Regulation (EC) No 562/2006(10). It shall do so by ensuring the coordination of the actions of the Member States in the implementation of those measures, thereby contributing to an efficient, high and uniform level of control on persons and of surveillance of the external borders of the Member States. The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’); the relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights, and taking into account the reports of the Consultative Forum referred to in Article 26a of this Regulation. 3. The Agency shall also provide the Commission and the Member States with the necessary technical support and expertise in the management of the external borders and promote solidarity between Member States, especially those facing specific and disproportionate pressures. Content I. II. III. IV.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Textual analysis: Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Textual analysis: Fundamental rights and related obligations . . . . . . . . . . . . . 16

I. General Remarks Regulation 2007/2004 established an agency of the European Union concerned with 1 operational co-operation at the EU and Schengen external border. The agency is generally known as ‘Frontex’, in an abbreviation of the French term ‘frontie`res exte´rieures’.1 By virtue of Council Decision 2005/358/EC of 26 April 2005 (OJ 2005 L 114/13) its seat is in Warsaw. It came into existence on 1 May 2005, and commenced operations on (10) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). 1 Peers/Guild/Tomkin, EU Immigration and Asylum Law, p. 119.

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3 October 2005. In practice, Frontex is mainly concerned with addressing immigration control pressure points at the Schengen external border. The creation of Frontex reflects the concern of Member States and of the EU to ensure effective external border controls, and solidarity in such control, in a context of open internal borders within the Schengen zone.2 Its actual emergence in the first half of the 2000s has been linked to the enlargement of the EU, and to internal security and anti-terrorism policy.3 Its formal origins lie in a request by the Laeken European Council of 14/15 December 2001 to the Council and Commission to examine ‘arrangements for cooperation between services responsible for external border control’ and ‘a mechanism or common services to control external borders.’4 That was followed by a Commission Communication on 7 May 2002, which inter alia recommended the establishment of an ‘external borders practitioners common unit’.5 That proposal would eventually be taken up through the establishment of Frontex.6 Since 2005, there has been recurrent discussion of whether Frontex’s systems are adequate to ensure respect for fundamental rights.7 As we shall see in this Chapter, that concern led to various amendments to the Frontex Regulation in 2011. Doubts about the protection of fundamental have nevertheless remained. In particular, there have subsequently been two relevant own-initiative inquiries by the European Ombudsman, concerned with the overall protection of fundamental rights by Frontex (2012–2013), and with joint return operations (2014-).8 Operations at sea have posed especially difficult questions for Frontex. Amendments to the Frontex Regulation in 2011 sought to clarify that it can engage in such operations, while a Decision in 2010 and a Regulation in 2014 have confirmed that such operations can lead to search and rescue. It remains the case however that Frontex’s mandate is primarily concerned with external border control, and not humanitarian goals. This limitation has come under scrutiny especially as a result of the tragedies of 13 and 19 April 2015, when an estimated 400 and 800 persons drowned in separate incidents in the Central Mediterranean. Against this background, a reform of Frontex’s governing legislation to permit a greater humanitarian role at sea cannot be ruled out. Another future question concerning Frontex concerns the possibility of the EU having its own border guards. In 2002, the Commission proposed a ‘European Corps of Border Guards’.9 That idea was not however taken up by the Member States, who preferred operational co-operation.10 In 2014, a Commission-funded study proposed a different 2

Neal, JCMS 47 (2009). Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 363–365 and Trevisanut, in Azoulai/de Vries (eds), EU Migration Law, p. 106–109, respectively. 4 Presidency Conclusions, European Council Meeting in Laeken, 14–15 December 2001 (SN 300/1/01 Rev 1), para 42. 5 Towards Integrated Management of the External Borders of the Member States of the European Union, Commission Communication COM(2002) 233 final, especially paras 28–44. 6 On the background to the 2004 Regulation, see Neal, JCMS 47 (2009), p. 338–346 and Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 230–232. 7 See generally Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control; Guild/ Carrera/den Hertog/Parkin, Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies (European Parliament, 2011), p. 57–64; Carrera/den Hertog/Parkin, ‘The Peculiar Nature of EU Home Affairs Agencies in Migration Control: Beyond Accountability versus Autonomy?’, EJML 15 (2013), p. 337–358. 8 Inquiry OI/5/2012/BEH-MHZ was opened on 6 March 2012, and concerned the protection of fundamental rights by Frontex overall. It led to a negative decision concerning the lack of a complaint mechanism on 12 November 2013. Inquiry OI/9/2014/MH was opened on 20 October 2014, and concerns respect for fundamental rights in joint return operations. 9 COM(2002) 233 final, paras 45–51. 10 See the sources cited in note 6, above. 3

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model, whereby member states would retain responsibility for the external border in routine contexts, with Frontex and a European Borders Corps potentially taking executive responsibility in so-called ‘hot spot situations’.11 Any such development would entail a fundamental change in Frontex’s role, relative to the current arrangements.

II. Legislative History The Commission proposal which led to the original Frontex Regulation was published on 20 November 2003.12 That proposal was based on Article 66 TEC, which permitted measures ‘to ensure cooperation’ both between member state administrations, and between them and the Commission. The eventual 2004 Frontex Regulation was also based on Article 62(2)(a) TEC, which permitted measures on the standards and procedures to be followed by Member States in external border checks.13 The legislative procedure involved consultation of the Parliament, with the negotiation and adoption of the Regulation by the Council of Ministers. A first set of amendments to the Frontex Regulation were made as part of Regulation 863/2007/EC of 11 July 2007 concerning rapid border intervention teams (known as ‘RABITs’).14 The broad purpose of the 2007 Regulation was to permit a Member Sate facing ‘extreme difficulties’ at its border to have rapid access – via Frontex – to other Member States’ border officials. The 2007 Regulation too was also based upon Articles 62(2)(a) and 66 TEC, using the co-decision procedure. It was adopted after the first reading stage using the ‘trilogue’ procedure.15 A more sweeping set of amendments was made by Regulation 1168/2011/EU of 25 October 2011.16 The 2011 Regulation followed a process of review of Frontex’s operations and legal framework which had been initiated in 2008.17 The aims of the 2011 Regulation were to enhance the effectiveness of Frontex, to give clarity to its legal framework and to impose a range of fundamental rights-related requirements upon it.18 The Commission proposal which led to the 2011 amending Regulation was published on 24 February 2010.19 After slow progress in the first 12 months, the legislative context was transformed by the events of the Arab Spring in 2011. The implications for migration of those events led the European Council to call on 11 March 2011 for rapid agreement on the Regulation.20 The Parliament’s LIBE Committee then defined its position on 17 March 2011, which was followed by a ‘trilogue’ process, and agreement on a compromise text on 21 June 2011.21 The 2011 Regulation was partly based upon Article 77 TFEU competences concerning the external border: Article 77(2)(b) TFEU, concerning checks at the external border – 11 DG Home, Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union (June 2014). 12 COM(2003) 687 final. 13 This change was at the Council’s request: see Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 367, and compare COM(2003) 687, p. 15 and Council doc. 9018/04 of 30 April 2004, p. 2. 14 OJ 2007 L 199/30. This had its origins in COM(2006) 401 final. 15 See Council doc. 8728/07 of 30 April 2007. 16 OJ 2011 L 304/1. 17 Report on the evaluation and future development of the FRONTEX Agency, COM(2008) 67 final. 18 See SEC(2010) 149 (the Impact Assessment accompanying COM(2010) 61); Trevisanut, in Azoulai/ de Vries (eds), EU Migration Law, p. 120. 19 Commission Communication COM(2010) 61 final. 20 European Council, Extraordinary European Council: Declaration (EUCO 7/1/11, 11 March 2011), para 10. See also Council doc 8518/2011 of 5 April 2011, noting that Declaration. 21 See Council doc. 12341/11 of 5 July 2011, p. 2.

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which had replaced Article 62(2)(a) TEC – and Article 77(2)(d) TFEU, concerning ‘the gradual establishment of an integrated management system for external borders’, a new competence introduced by the Treaty of Lisbon.22 It was also based on Article 74 TFEU, which is the successor to Article 66 TEC, and permits measures to ‘ensure administrative cooperation’ between Member State departments, and between them and the Commission.23 10 As a measure building on the Schengen acquis, the Frontex Regulation applies to Denmark on an international law basis (Regulation 2007/2004, recital 24). The four non-EU Schengen states – Iceland, Liechtenstein, Norway and Switzerland – also participate in Frontex.24 It is implicit that these states are to be considered ‘Member States’ for the purposes of the Frontex Regulation. 11 The Frontex Regulation does not apply to Ireland and the UK, as these EU Member States are outside the Schengen zone (see Regulation 2007/2004, recitals 26 and 25, respectively). The terms ‘Member State’ and ‘third country’ are not defined in the Regulation. Nevertheless, it follows from the counter-position of ‘the Member States’ to Ireland and the UK in recital 27 and Article 12 that the latter are not ‘Member States’ for the purposes of the Regulation. For coherence, it must be taken to follow that those states are ‘third countries’ under the Regulation (e. g. in Article 2(2): below, Article 2, MN 10). 12 The UK sought to participate in the negotiation of the original Frontex Regulation 2007/2004, but was blocked from so doing by the EU Member States in the Schengen zone, as it did not participate in Schengen external border arrangements.25 It then mounted an unsuccessful legal challenge to its exclusion from the Regulation.26 Its action failed above all because the Court of Justice held that the Frontex Regulation ‘built upon’ the Schengen acquis, as the principle of control at the external borders was central to that acquis.

III. Textual analysis: Mandate Article 1(1) formally establishes Frontex as the ‘European Agency for the Management of Operational Cooperation at the External Borders’. The reference to ‘cooperation’ in its name implies that it does not have its own executive role at the border. Moreover, the phrase ‘at the external borders’ suggests that its remit does not extend to immigration control within Member States, to controls at internal Schengen borders, or to action far removed from Schengen borders. 14 The first paragraph of Article 1(2) states that responsibility for control and surveillance of the external borders ‘lies with the Member States’. Correspondingly, the role of Frontex is stated to be one of ‘coordination’ of Member State action. This division of labour is significant because it implies that Member States retain legal responsibility for actions undertaken in the context of Frontex missions, while Frontex can argue that it does not have such responsibility (see MN 20 and 21 to this Article). 15 It is significant that the stated role of Frontex concerns the effective application and implementation of EU acquis concerning the external borders, including the Schengen Borders Code. Other possible roles for Frontex – including a possible humanitarian mandate – therefore lack foundation in the Regulation, as it currently stands. 13

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On this legislative power, see Mungianu, EJML 15 (2013), p. 365–367. On this legislative power, see Mungianu, EJML 15 (2013), p. 367–369. 24 For Iceland and Norway, see Council Decision 2007/511 OJ L 188 20.7.2007 p. 15. For Liechtenstein and Switzerland, see Council Decision 2010/490 OJ L 243 16.9.2010 p. 22. 25 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 371–372. 26 ECJ, UK v. Council, C-77/05, EU:C:2007:803. 23

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IV. Textual analysis: Fundamental rights and related obligations The second paragraph of Article 1(2), added in 2011, requires Frontex to respect a range of legal obligations and principles. Two instruments are mentioned by name: the ChFR and the 1951 Refugee Convention.27 Beyond these, reference is made to ‘relevant’ EU law and international law, to ‘obligations related to access to international protection, in particular the principle of non-refoulement’, and to ‘fundamental rights’.28 Recitals 17, 18 and 19 to the Regulation show, respectively, that ‘relevant EU law’ includes Regulation 1073/1999/EC of 25 May 1999 concerning investigations by the European Anti-Fraud Office29, Regulation 1049/2001/EC of 30 May 2001 regarding public access to documents30, and Regulation 45/2001/EC of 18 December 2000 concerning the processing of personal data by EU institutions and bodies.31 The terms ‘access to international protection’ and ‘non-refoulement’ are not defined in the Regulation. It is likely that these terms cover both the protection of refugees deriving from the 1951 Refugee Convention, and ‘subsidiary protection’ guarantees against expulsion, deriving from Articles 2 and 3 ECHR (and by extension Articles 2 and 4 ChFR), and Article 15(c) of the Qualification Directive.32 One reason is that the recast EU legislation on international protection covers both categories of claim.33 Another is that the 2014 Sea Borders Regulation expressly treats non-refoulement as covering both categories (see chapter on that Regulation, Article 4 MN 7). Recital 22 to the Regulation shows that the term ‘fundamental rights’ covers the legal principles in the ChFR and – in case these go further – the ECHR or the common constitutional traditions of the Member States.34 The other ‘international law’ that might be relevant is not stated in the text of the Frontex Regulation. The following other international law instruments relevant to Frontex are however referred to in recital 8 to the Sea Borders Regulation (discussed in a separate chapter): – UNCLOS (1982), to which the EU itself, and 31 EU or associated Schengen states are party (all except Liechtenstein);35 – the SOLAS Convention (1974), to which 31 EU or associated Schengen states are party (all except Liechtenstein); 27 These specific references were initially proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 23. 28 The reference to non-refoulement was initially proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 23. 29 OJ 1999 L 136/15. 30 OJ 2001 L 145/43. 31 OJ 2001 L 8/1. 32 Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9). 33 These are: Directive 20011/95/EU, above note 32; Regulation 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States (OJ 2013 L 180/31); Directive 2013/32/ EU of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60); and, Directive 2013/33/EU laying down standards for the reception of applicants for international protection (OJ 2013 L 180/137). 34 Recital 22 refers to Article 6(2) of the TEU. This refers to the pre-Lisbon version of the TEU, and the recital should now presumably be read as it if referred to Article 6(3) TEU. 35 Note that the EU ratified UNCLOS on 1 April 1998 in relation to specified areas of competence, which do not include borders and immigration.

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– the SAR Convention (1979), to which 27 EU or associated Schengen states are party (all except Austria, the Czech Republic, Slovakia, Liechtenstein and Switzerland); – the UN Convention against Transnational Organized Crime (1990), to which the EU itself and all 32 EU or associated Schengen states are party; – the Migrant Smuggling Protocol (2000) to which the EU itself, and 30 EU or associated Schengen states are party (all except Iceland and Ireland) – the ICCPR (1966), to which all 32 EU or associated Schengen states are party – the CAT (1984), to which all 32 EU or associated Schengen states are party – the UN Convention on the Rights of the Child (1989), to which all 32 EU or associated Schengen states are party. 21 An important question in this area is whether Frontex is capable of breaching fundamental rights, non-refoulement, or other international law principles. Frontex’s position is that, because Member States and their officials conduct external border operations, there are no acts or decisions of Frontex to which legal responsibility can attach. For that reason, it has refused to establish its own complaints mechanism for alleged fundamental rights violations during Frontex operations.36 22 That legal analysis is open to question, given Frontex’s degree of involvement in some aspects of border control. One argument is that, when Frontex deploys guest officers from other Member States to assist a host Member State’s external border control, they are required to identify themselves as Frontex officers (see below, Article 10 MN 5). Given this identification, it appears artificial that the host state and/or of the officer’s home state alone have responsibility for their conduct, and alone may receive complaints relating to that conduct.37 More generally, Frontex might be thought to have duties through its involvement in the organisation of operations – including border control, operations at sea and joint returns by air. Legal difficulties might arise where it did not require Member States to respect fundamental rights or non-refoulement and/or did not sufficiently concern itself with whether Member States respected those obligations.

Article 1a Definitions For the purposes of this Regulation, the following definitions shall apply: 1. ‘external borders of the Member States’ means the land and sea borders of the Member States and their airports and seaports, to which the provisions of Community law on the crossing of external borders by persons apply; 1a. ‘European Border Guard Teams’ means for the purpose of Article 3, Article 3b, Article 3c, Article 8 and Article 17, teams to be deployed during joint operations and pilot projects; for the purpose of Articles 8a to 8g, teams to be deployed for rapid border interventions (‘rapid interventions’) within the meaning of Regulation (EC) No 863/2007(11), and for the purpose of points (ea) and (g) of Article 2(1) and Article 5, teams to be deployed during joint operations, pilot projects and rapid interventions; 36 See for example a letter from Frontex to the European Ombudsman concerning its own-initiative inquiry OI/5/2012/BEH-MHZ, 17 May 2012, Annex 1, available at http://www.ombudsman.europa.eu [last accessed 8 July 2015]. 37 For this argument in relation to a Frontex complaints mechanism, see Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex (12 November 2013), para 37, available at http://www.ombudsman.europa.eu [last accessed 8 July 2015]. (11) Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams (OJ L 199, 31.7.2007, p. 30).

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2. ‘host Member State’ means a Member State in which a joint operation, a pilot project or a rapid intervention takes place or from which it is launched; 3. ‘home Member State’ means the Member State of which a member of the team or the guest officer is a border guard; 4. ‘members of the teams’ means border guards of Member States serving with the European Border Guard Teams other than those of the host Member State; 5. ‘requesting Member State’ means a Member State whose competent authorities request the Agency to deploy teams for rapid interventions on its territory; 6. ‘guest officers’ means the officers of border guard services of Member States other than the host Member State participating in joint operations and pilot projects. Content I. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. ‘External borders’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Other definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. History A separate Article 1a containing definitions was added by the 2007 Regulation, and 1 then amended by the 2011 Regulation. The definition of an ‘external border’ had previously appeared as Article 1(4) of the 2004 Regulation. The other concepts and definitions now within Article 1a did not appear until 2007.

II. ‘External borders’ In the Frontex Regulation, the term ‘external borders’ is stated to cover the land 2 borders, sea borders, airports and seaports of the Member States. The Schengen Borders Code of 2006 takes a slightly different approach, by expressly including river and lake borders and ports.38 It is to be assumed that that is also the implicit position under the Frontex Regulation. Under Article 1a(1), an ‘external border’ is a border or port to which ‘Community 3 law on the crossing of borders by persons’ applies. In the current state of EU law, this phrase presumably means the Schengen Borders Code, other than its Title III concerning internal borders. The Schengen Borders Code applies to all the territories of Schengen states which are within the EU, and not to their territories that are outside the EU.39 That area includes the four EU member states – Bulgaria, Croatia, Cyprus and Romania – that are bound by the Schengen acquis, even though internal border controls between them and other Schengen states have not (yet) been abolished. It also includes Spain’s North African enclaves of Ceuta and Melilla, which have land borders with Morocco, even though controls on entry continue to apply to travel between those territories and other parts of Schengen area (including other Spanish territory).40 The logic of Article 1a(1) is that Frontex’s remit applies to borders and travel between 4 the Schengen zone and EU Member States and territories that are not within the Schengen area. i. e. Ireland, the UK and the French overseas departments. (In relation to Gibraltar, see Article 12, below.) 38

Schengen Borders Code, Article 2(2). For the list of overseas member state territories that are not part of the EU, see Annex II to the TFEU. 40 Declaration by Spain published in OJ 2000 L 239/73, recognised in the Schengen Borders Code, Article 36. 39

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III. Other definitions The definition of ‘European Border Guard Teams’ (EBGTs) in Article 1a(1a) was added by the 2011 amending Regulation. Its complex structure reflects the fact that one set of legal provisions applies if EBGTs are involved in a joint operation or pilot project under Articles 3 and 3a of the Regulation, while a distinct legal framework applies if they are involved in a rapid intervention under its Article 8a. The introduction of a single concept to cover both cases was initially proposed by the Parliament.41 6 The ‘host Member State’ (Article 1a(3)) is the state with the primary legal and administrative responsibility for a Frontex joint operation, pilot project or rapid intervention. A textual amendment in 2011 saw the addition of the words ‘or from which it is launched’ to the definition of ‘host Member State’. This extension presumably covers operations on the high seas, and is evidence that such operations are within Frontex’s remit. 5

CHAPTER II TASKS Article 2 Main tasks 1. The Agency shall perform the following tasks: (a) coordinate operational cooperation between Member States in the field of management of external borders; (b) assist Member States on training of national border guards, including the establishment of common training standards; (c) carry out risk analyses, including the assessment of the capacity of Member States to face threats and pressures at the external borders; (d) participate in the development of research relevant for the control and surveillance of external borders; (da) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, taking into account that some situations may involve humanitarian emergencies and rescue at sea; (e) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, especially those Member States facing specific and disproportionate pressures; (ea) set up European Border Guard Teams that are to be deployed during joint operations, pilot projects and rapid interventions; (f) provide Member States with the necessary support, including, upon request, coordination or organisation of joint return operations; (g) deploy border guards from the European Border Guard Teams to Member States in joint operations, pilot projects or in rapid interventions in accordance with Regulation (EC) No 863/2007; (h) develop and operate, in accordance with Regulation (EC) No 45/2001, information systems that enable swift and reliable exchanges of information regarding

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emerging risks at the external borders, including the Information and Coordination Network established by Decision 2005/267/EC(12); (i) provide the necessary assistance for the development and operation of a European border surveillance system and, as appropriate, to the development of a common information-sharing environment, including interoperability of systems, in particular by establishing, maintaining and coordinating the EUROSUR framework in accordance with Regulation (EU) No 1052/2013 of the European Parliament and of the Council(13). 1a. In accordance with Union and international law, no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. The special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law. 2. Without prejudice to the competencies of the Agency, Member States may continue cooperation at an operational level with other Member States and/or third countries at external borders, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on those operational matters at the external borders outside the framework of the Agency. The Executive Director of the Agency (‘the Executive Director’) shall inform the Management Board of the Agency (‘the Management Board’) on those matters on a regular basis and at least once a year. Content I. Tasks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Non-refoulement and vulnerable persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Tasks Article 2(1) concerns what are termed the ‘main tasks’ of Frontex. It appears to be 1 under a duty to perform (‘shall’) these tasks. It is arguable that it may engage in other tasks too, provided they are consistent with its overall remit set out in Articles 1(1) and (2). In Article 2(1)(a), the task of co-ordination concerning the management of external 2 borders is said to relate to ‘operational cooperation between Member States’. This formulation does not cover direct co-ordination between Frontex and a sole Member State. It cannot be ruled out however that (for the reasons given in MN 1, above), Article 2 as a whole permits such co-ordination to occur. Article 2(1)(da) and Article 2(1)(e) each refer to the task of assisting Member States 3 ‘in circumstances requiring increased technical and operational assistance’. The original version of the Frontex Regulation referred to this task without further elaboration. The 2011 amending Regulation then distinguished two scenarios: Article 2(1)(da) provides that some such situations ‘may involve humanitarian emergencies and rescue at sea’, while Article 2(1)(e) refers to Member States facing ‘specific and dispropor(12) Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (OJ L 83, 1.4.2005, p. 48). (13) Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (EUROSUR) (OJ L 295, 6.11.2013, p. 11).

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tionate pressures’.42 The significance of Article 2(1)(da) is that it permits Frontex to make provision for rescue at sea and for other humanitarian needs, within its broader remit. (See further the chapter on the Sea Borders Regulation.) 4 The tasks of setting up and deploying European Border Guard Teams (EBGTs), referred to in Article 2(1)(e) and Article 2(1)(g), were added by the 2011 Regulation. These tasks are elaborated in Articles 3b and 3c (see below). 5 The task of supporting joint return operations, referred to in Article 2(1)(f), is elaborated in Article 9 (see below). The phrasing in the original version of the Regulation was that Frontex should ‘provide Member States with … support in organising’. That implied that the Member State remained responsible for the organisation of such operations. As a result of amendments in 2011, Frontex may provide ‘co-ordination or organisation’, which permits it to take a more central role in joint return arrangements.43 6 Article 2(1)(i), which was added in 2011, sets out the task of assisting the development and operation of ‘a European border surveillance system.’ This task refers to Eurosur, which is a system for the sharing of border surveillance information, and the co-ordination of border surveillance, between the Schengen states, and with Frontex. Eurosur was established by Regulation 1052/2013/EU, adopted on 22 October 2013,44 and became operational on 2 December 2013. The roles of Frontex are detailed in Article 6 of that Regulation: to establish and maintain the Eurosur communication network; to establish and maintain what are termed ‘the European situational picture’, and ‘the common pre-frontier intelligence picture’; and, to co-ordinate the use of surveillance tools.

II. Non-refoulement and vulnerable persons Article 2(1a) was added by the 2011 Regulation.45 Its first sentence requires respect for the non-refoulement principle, ‘in accordance with Union and international law.’ The legal sources of this principle were discussed above (Article 1 MN 18). Where the principle of non-refoulement applies, neither disembarkation nor a handover to another state is permitted. The principle applies both directly to that other state, and indirectly, where there is a risk of subsequent expulsion or return to a further state. The reference to disembarkation relates to persons who are intercepted and/or rescued at sea. (See the chapter on the Sea Borders Regulation, Article 4.) The reference to a ‘handover’ is more general in application, and arguably covers all of operations at sea, refusals at a frontier and joint return operations. 8 One question in this area is whether non-refoulement obligations can apply outside the territories of the Member States. (See also above Thym, Legal Framework for Entry and Border Controls, MN 37 et seq.) It is established that the guarantees concerning non-refoulement in Article 3 ECHR and Article 3 CAT apply to persons intercepted or rescued at sea by a contracting state’s vessel, as it thereby acquires ‘control’ over them.46 In the case of the prohibition on non-refoulement in the Refugee Convention, states 7

42 These amendments each arose out of proposals made by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 25. 43 The Commission proposal was that Frontex should provide ‘coordination regarding organising: COM(2010) 61, p. 19. The Council proposed the reference to ‘coordination or organisation: Council doc. 7961/11 of 25 March 2011, p. 26. 44 Regulation 1052/2013/EU establishing the European Border Surveillance System (Eurosur), OJ 2013 L 295/11. 45 Its insertion arose out of a Parliament proposal: see Council doc. 7961/11 of 25 March 2011, p. 28. 46 In relation to the ECHR:, ECtHR (Grand Chamber), Judgement of 23 February 2012, No. 27765/09,. Hirsi Jamaa and others v. Italy; In relation to the CAT: UN Committee Against Torture, Decision of

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have historically sought to limit protection to persons within their territories. Nevertheless, the scope of the principle is now open to a broader reading as a result of the developments concerning human rights instruments.47 A different set of issues arises in relation to EU law as such. Secondary EU legislation concerning applications for international protection expressly applies only to those who make applications in Member State territory, including applications at the border and in transit zones.48 Without an express extension, it is not clear that these instruments apply to Member States or Frontex outside Schengen territory. The protection of vulnerable persons under the second sentence of Article 2(1a) does 9 not indicate which legal instruments are relevant. The EU Reception Conditions Directive contains a general duty to ‘take into account the specific situation of vulnerable persons’, and gives the following list as examples: ‘minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illness, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation.49 In the case of children, we may assume that the primary reference point is the UN Convention on the Rights of the Child (1989). The legal instruments concerning victims of trafficking presumably include Directive 2011/36/EU on preventing and combating trafficking in human beings,50 the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (1990)51, and the Council of Europe Convention on Action against Trafficking in Human Beings (2005).52 Legal obligations concerning urgent medical assistance flow from Article 3 ECHR, Article 12 ICESCR, and Article 11 of the European Social Charter (1961) and of the Revised European Social Charter (1996). Specific obligations concerning persons in need of international protection flow from the Refugee Convention. Article 2(2) permits Member States to engage in operational co-operation with other 10 states, provided that that co-operation ‘complements the action of the Agency’.53 This provision presumably covers co-operation between Schengen states; co-operation between one or more Schengen states and Ireland and the UK54; and, co-operation between Schengen states and other third states.55 21 November 2008, Communication No. 323/2007, J.H. A. v. Spain and UN Committee Against Torture, Decision of 25 November 2011, Communication No. 368/2008, Sonko v. Spain. 47 See UNHCR, Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007); Klug/Howe, ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’ in Ryan/Mitsilegas, Valsamis (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff, 2010), p. 69. 48 See Regulation 604/2013, Article 3; Directive 2013/32, Article 3; and, Directive 2013/33, Article 3 (all above, note 33). For a discussion, see den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 203–206. 49 See now Directive 2013/33/EU laying down standards for the reception of applicants for international protection, OJ 2013 L 180/96, Article 21. 50 OJ 2011 L 101/1. 51 See Articles 6–8 of the Protocol. The EU itself, and all EU or associated Schengen states, are parties. 52 This Convention has been ratified by 30 EU or associated Schengen states. The exceptions are the Czech Republic and Liechtenstein. 53 Article 2(2) was added during the negotiations on the 2004 Regulation, in order to protect the position of Member States: Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 370. Compare COM(2003) 687, p. 19 and Council doc. 9018/04 of 30 April 2004, p. 8. 54 These include the arrangements between the UK and France and Belgium in relation to train and ferry traffic across the English Channel: see Ryan, ‘The European Dimension to British Border Control’, Journal of Immigration Asylum and Nationality Law 28 (2004), p. 6. 55 See above Thym, Legal Framework for Entry and Border Controls, MN 30.

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Article 2a Code of Conduct The Agency shall draw up and further develop a Code of Conduct applicable to all operations coordinated by the Agency. The Code of Conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on unaccompanied minors and vulnerable persons, as well as on persons seeking international protection, applicable to all persons participating in the activities of the Agency. The Agency shall develop the Code of Conduct in cooperation with the Consultative Forum referred to in Article 26a. 1

Article 2a was added to the Frontex Regulation by the 2011 amendments. It requires Frontex to have a Code of Conduct which lays down procedures to ensure respect for the rule of law and fundamental rights. These procedures are to include particular provision for unaccompanied minors, vulnerable persons and persons seeking international protection. The Code is to apply both to all Frontex ‘operations’ and to all persons participating in ‘the activities’ of the Agency. By the time of the amendments, the Code of Conduct in question had been approved by the Frontex Director, by a decision of 21 March 2011.56

Article 3 Joint operations and pilot projects at the external borders 1. The Agency shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States, including the requests of Member States related to circumstances requiring increased technical and operational assistance, especially in cases of specific and disproportionate pressures. The Agency may itself initiate and carry out joint operations and pilot projects in cooperation with the Member States concerned and in agreement with the host Member States. It may also decide to put its technical equipment at the disposal of Member States participating in the joint operations or pilot projects. Joint operations and pilot projects should be preceded by a thorough risk analysis. 1a. The Agency may terminate, after informing the Member State concerned, joint operations and pilot projects if the conditions to conduct those joint operations or pilot projects are no longer fulfilled. The Member States participating in a joint operation or pilot project may request the Agency to terminate that joint operation or pilot project. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law in case of violations of fundamental rights or international protection obligations in the course of a joint operation or pilot project. The Executive Director shall suspend or terminate, in whole or in part, joint operations and pilot projects if he/she considers that such violations are of a serious nature or are likely to persist. 56 It may be accessed at http://frontex.europa.eu/assets/Publications/General/Frontex_Code_of_Conduct.pdf [last accessed 8 July 2015].

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1b. The Agency shall constitute a pool of border guards called European Border Guard Teams in accordance with Article 3b, for possible deployment during joint operations and pilot projects referred to in paragraph 1. It shall decide on the deployment of human resources and technical equipment in accordance with Articles 3a and 7. 2. The Agency may operate through its specialised branches provided for in Article 16 for the practical organisation of joint operations and pilot projects. 3. The Agency shall evaluate the results of the joint operations and pilot projects and transmit the detailed evaluation reports within 60 days following the end of those operations and projects to the Management Board, together with the observations of the Fundamental Rights Officer referred to in Article 26a. The Agency shall make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and effectiveness of future joint operations and pilot projects and include it in its general report provided for in point (b) of Article 20(2). 4. The Agency shall finance or co-finance the joint operations and pilot projects referred to in paragraph 1, with grants from its budget in accordance with the financial rules applicable to the Agency. 5. Paragraphs 1a and 4 shall apply also to rapid interventions. Content I. II. III. IV.

Setting up joint operations and pilot projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination of joint operations and pilot projects . . . . . . . . . . . . . . . . . . . . . . . . . . Fundamental rights aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to rapid interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 8

I. Setting up joint operations and pilot projects Provision is made in Article 3 for joint operations and pilot projects. As a result of a 1 2011 amendment, the situations in which these forms of assistance may be requested include ‘circumstances requiring increased technical and operational assistance … especially … cases of specific and disproportionate pressures.’ That apart, the Regulation does not define the conditions in which ‘joint operations’ and ‘pilot projects’ are permitted, or specify the form they take. The first paragraph of Article 3(1) permits Member States to propose joint opera- 2 tions and pilot projects in general terms. Article 8 of the Regulation also permits Member States to request assistance under Article 3, if they are ‘facing specific and disproportionate pressures and confronted with circumstances requiring increased technical and operational assistance’. Where a Member State request is made, the role of Frontex is to ‘evaluate, approve and coordinate’ those proposals. This formulation arguably gives Frontex discretion to decline to approve a well-founded proposal (e. g. for resources reasons). The second paragraph of Article 3(1) provides that Frontex may itself ‘initiate and 3 carry out’ joint operations and pilot projects. This formulation dates from the 2011 amendments, and must be considered stronger than Article 4 of the 2004 Regulation, which had referred to Frontex’s power to ‘launch initiatives’. From the original Regulation onwards, it has been provided that Frontex-initiated action requires the agreement of one or more host Member States, and the co-operation of the Member States concerned. A reference to host state agreement had not appeared in the Commission’s 2003 legislative proposal, and was added by the Council of

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Ministers.57 In 2010, the Commission’s amendment proposals were again silent about host states, but the Council of Ministers again ensured that reference to them was retained in the final version.58

II. Termination of joint operations and pilot projects Article 3(1a), which was added in 2011, is concerned with the termination of joint operations and pilot projects. Its first paragraph confers on Frontex the exclusive right to terminate joint operations and pilot projects, provided the conditions for them are no longer fulfilled. In the event of such a termination, there is an obligation to inform the ‘Member State concerned’. This obligation arose from a Council proposal during the legislative process.59 The state in question must be the host state, as otherwise the use of the singular ’State‘ would be inappropriate. It is unclear whether the obligation to inform arises prior to the decision to terminate, or prior to the actual termination. 5 The meaning of the term ‘condition’ in the first paragraph presumably includes the objective situation at the border. One area of uncertainty is whether the term includes the continued support of the host member state. The Regulation as a whole is silent as to the legal situation were a host Member State to object to the continuation of an operation. Another question is whether the continued support of participating states is a ‘condition’ of an operation. The second paragraph of Article 3(1a) provides that ‘the Member States participating in’ an operation or project may request that Frontex terminate it. That might be thought to imply that their support is not a ‘condition’ of an operation. As phrased, Article 3(1a) appears to require that all the participating states must make the request.60 4

III. Fundamental rights aspects The third paragraph of Article 3(1a) states that, where fundamental rights or international protection obligations are violated, the home Member State is to provide for appropriate disciplinary or other measures, in accordance with its national law.61 (For the meaning of the concepts of ‘fundamental rights’ and ‘international protection’, see above Article 1 MN 19 and MN 18, respectively.) 7 The fourth paragraph of Article 3(1a) permits the Executive Director of Frontex to suspend or terminate a joint operation or pilot project in cases of violations of fundamental rights or international protection obligations. (For the meaning of the concepts of ‘fundamental rights’ and ‘international protection’, see above Article 1 MN 19 and MN 18, respectively.) This clause originates in a Parliament proposal which would have required termination in any case of violation.62 The more restricted final 6

57 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 369. Compare COM(2003) 687, p. 20 and Council doc. 9018/04 of 30 April 2004, p. 9. 58 See COM(2010) 61, p. 20 and Council doc. 7961/11 of 25 March 2011, p. 30. This provision was extensively discussed in the 2010–2011 negotiations within the Council, and must be considered a compromise between those favouring a leading role for Member States, and a leading role for Frontex: see Mungianu, EJML 15 (2013), p. 376. 59 See Council doc. 7961/11 of 25 March 2011, p. 31. 60 The possibility of a request arose from a Council proposal: see Council doc. 7961/11 of 25 March 2011, p. 31. That proposal referred to ‘participating states’, which would have implied that not all participating states needed to make a request. The first public document in which the final version appears is the joint document PE-CONS 37/11 of 30 September 2011. 61 This clause was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 32. 62 See Council doc. 7961/11 of 25 March 2011, p. 32.

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version that resulted from negotiations with the Council requires action only if the Executive Director considers that any violations to be either ‘of a serious nature’ or ‘likely to persist’.63 There is no express requirement to inform the Member State concerned of a termination.

IV. Application to rapid interventions Article 3(5) was added in 2011. Of relevance here is that it extends the provisions in 8 Article 3(1a) concerning termination of missions and respect for fundamental rights and access to international protection to rapid interventions. (This category of operation takes place under Articles 8a-8h, discussed below).

Article 3a Organisational aspects of joint operations and pilot projects 1. The Executive Director shall draw up an operational plan for the joint operations and pilot projects referred to in Article 3(1). The Executive Director and the host Member State, in consultation with the Member States participating in a joint operation or pilot project, shall agree on the operational plan detailing the organisational aspects in due time before the envisaged beginning of that joint operation or pilot project. The operational plan shall cover all aspects considered necessary for carrying out the joint operation or the pilot project, including the following: (a) a description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the foreseeable duration of the joint operation or pilot project; (c) the geographical area where the joint operation or pilot project will take place; (d) a description of the tasks and special instructions for the guest officers, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; (e) the composition of the teams of guest officers, as well as the deployment of other relevant staff; (f) command and control provisions, including the names and ranks of the host Member State’s border guards responsible for cooperating with the guest officers and the Agency, in particular those of the border guards who are in command during the period of deployment, and the place of the guest officers in the chain of command; (g) the technical equipment to be deployed during the joint operation or pilot project, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; (h) detailed provisions on immediate incident reporting by the Agency to the Management Board and to relevant national public authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report in accordance with Article 3(3); (j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation or 63

See Council doc. 11017/11 of 1 June 2011, p. 16.

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pilot project takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation; (k) modalities of cooperation with third countries, other Union agencies and bodies or international organisations. 2. Any amendments to or adaptations of the operational plan shall require the agreement of the Executive Director and the host Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 3. The Agency shall, as part of its coordinating tasks, ensure the operational implementation of all the organisational aspects, including the presence of a staff member of the Agency during the joint operations and pilot projects referred to in this Article. Article 3a provides for the organisation of joint operations and pilot projects. It was added in 2011, and draws upon an equivalent provision for rapid interventions added in 2007. (See Article 8e, discussed below.) The core principle, set out in Article 3a(1), is that the operational plan is to be agreed between Frontex’s Executive Director and the host Member State, after consultation with the other states involved.64 Article 3a(2) provides that any changes to the operational plan are be agreed by the Executive Director and the host Member State, with the other Member States informed after the fact. 2 Article 3a(1) includes a list of the main elements of the operational plan for a joint operation or a pilot project. It is in similar terms to the provision made in Article 8e (below) for operational plans for rapid intervetions. 3 Article 3a(1)(e) makes reference both to guest officers and to ‘other relevant staff’. The meaning of the latter phrase is unclear, but probably includes Frontex’s own staff. Under Article 3a(1)(f), express provision must be made for the command and control structure, and for how guest officers from other Member States fit within it. 4 In the case of operations at sea, Article 3a(1)(j) requires that the operational plan include ‘specific information’ about ‘the relevant jurisdiction and legislation’ applicable in the geographical area in question. This information is to include ‘reference to’ international and EU law on interception, rescue and disembarkation.65 (For a fuller discussion of the legal framework relating to operations at sea, see the chapter on the Sea Borders Regulation.) 1

Article 3b Composition and deployment of European Border Guard Teams 1. On a proposal by the Executive Director, the Management Board shall decide by an absolute majority of its members with a right to vote on the profiles and the overall number of border guards to be made available for the European Border Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall numbers. Member States shall contribute to the European Border Guard Teams via a national pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles. 2. The contribution by Member States as regards their border guards to specific joint operations and pilot projects for the following year shall be planned on the basis 64 The Commission proposal did not provide for such consultation: see COM(2010) 61, p. 21. Provision for it was proposed by the Council of Ministers: see Council doc. 7961/11 of 25 March 2011, p. 34, Mungianu, EJML 15 (2013), p. 376. 65 This resulted from a proposal by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 36.

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of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 45 days before the intended deployment. The autonomy of the home Member State in relation to the selection of staff and the duration of their deployment shall remain unaffected. 3. The Agency shall also contribute to the European Border Guard Teams with competent border guards seconded by the Member States as national experts pursuant to Article 17(5). The contribution by Member States as regards the secondment of their border guards to the Agency for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for secondment, unless that would seriously affect the discharge of national tasks. In such situations Member States may recall their seconded border guards. The maximum duration of such secondments shall not exceed six months in a 12month period. The seconded border guards shall, for the purpose of this Regulation, be considered as guest officers and have the tasks and powers provided for in Article 10. The Member State having seconded the border guards in question shall be considered as the home Member State, as defined in point 3 of Article 1a, for the purpose of applying Articles 3c, 10 and 10b. Other staff employed by the Agency on a temporary basis who are not qualified to perform border control functions shall only be deployed during joint operations and pilot projects for coordination tasks. 4. Members of the European Border Guard Teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures, and human dignity. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 5. In accordance with Article 8g, the Agency shall nominate a coordinating officer for each joint operation or pilot project where members of the European Border Guard Teams will be deployed. The role of the coordinating officer shall be to foster cooperation and coordination amongst host and participating Member States. 6. The Agency shall meet the costs incurred by the Member States in making their border guards available pursuant to paragraph 1 of this Article for the European Border Guard Teams in accordance with Article 8h. 7. The Agency shall inform the European Parliament on an annual basis of the number of border guards that each Member State has committed to the European Border Guard Teams in accordance with this Article. Article 3b was added in 2011. It makes provision for European Border Guard Teams, 1 made up of Member State officials. The profiles and number of border guards required are decided by the Frontex Management Board, acting by an absolute majority, on a proposal from the Executive Director. By virtue of Article 1a(1a) (above), these provisions apply only to the involvement of EBGTs in joint operations and pilot projects. Rapid interventions are regulated separately (see Article 8a, below).

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Article 3b is ambiguous in relation to the obligations upon Member States. The third sentence to Article 3b(1) suggests an obligation, when it provides that ‘Member States shall contribute’ officials to the EBGTs via a national pool.66 A different impression is however given by Article 3b(2) and (3), which respectively provide for Member States’ contribution of border guards and seconded officials to be agreed in annual negotiations with Frontex. These references to negotiations were added as a result of Council proposals in the legislative process.67 3 Under Article 3b(2), Frontex may call upon Member State officials for an EBGT by giving at least 45 days’ notice. Where it does so, Member States are obliged to make the border guards available, unless they face ‘an exceptional situation substantially affecting the discharge of national tasks’. Member States retain autonomy over the choice of officials, and the duration of their deployment. 4 Under Article 3b(3), Member States must make officials available for secondment, unless that would ‘seriously affect the discharge of national tasks’. Secondment is for a maximum of six months in any 12-month period. 5 Article 3b(4) requires that members of EBGTs involved in joint operations and pilot projects should respect fundamental rights. That obligation is stated to include ‘access to asylum procedures’.68 That phrase is theoretically narrower than the concept of access to ‘international protection’ in Article 3(1a) (above, Article 1 MN 18). In the interests of coherence, it is probable that a broad reading – covering both the Refuge Convention and subsidiary sources of protection – should apply here too. Article 3b(4) also requires respect for human dignity, that any measures taken are proportionate ones, and that EBGT members should not discriminate on specified grounds (sex, racial or ethnic origin, religion or belief, disability or sexual orientation). It may be added that Article 10(2) of Regulation 863/2007 places equivalent obligation upon officers involved in rapid interventions. 2

Article 3c Instructions to the European Border Guard Teams 1. During deployment of European Border Guard Teams, the host Member State shall issue instructions to the teams in accordance with the operational plan referred to in Article 3a(1). 2. The Agency, via its coordinating officer as referred to in Article 3b(5), may communicate its views on the instructions referred to in paragraph 1 to the host Member State. If it does so, the host Member State shall take those views into consideration. 3. In accordance with Article 8g, the host Member State shall give the coordinating officer all necessary assistance, including full access to the European Border Guard Teams at all times throughout the deployment. 4. Members of the European Border Guard Teams shall, while performing their tasks and exercising their powers, remain subject to the disciplinary measures of their home Member State.

66 This aspect is emphasised by Mungianu, EJML 15 (2013), p. 381 and Trevisanut, in Azoulai/de Vries (eds), EU Migration Law, p. 117. 67 See Council doc. 7961/11 of 25 March 2011, p. 38; Council doc. 11017/11 of 1 June 2011, p. 11. 68 This phrase has its origins in a proposal by the Parliament for reference to be made to ‘the right of asylum’: see Council doc. 7961/11 of 25 March 2011, p. 40.

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Article 3c, which was added in 2011, concerns the position of EBGT officers in host 1 Member States. It Article 3c(1) provides that it is the responsibility of the host member state to give instructions to EBGT members. Article 3c(4) provides that EBGT members nevertheless remain subject to disciplinary measures on the part of the home Member State.

Article 4 This provision, dealing with risk analysis, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 5 Training The Agency shall provide border guards who are members of the European Border Guard Teams with advanced training relevant to their tasks and powers and shall conduct regular exercises with those border guards in accordance with the advanced training and exercise schedule referred to in the annual work programme of the Agency. The Agency shall also take the necessary initiatives to ensure that all border guards and other personnel of the Member States who participate in the European Border Guard Teams, as well as the staff of the Agency, have received, prior to their participation in operational activities organised by the Agency, training in relevant Union and international law, including fundamental rights and access to international protection and guidelines for the purpose of identifying persons seeking protection and directing them towards the appropriate facilities. The Agency shall establish and further develop common core curricula for the training of border guards and provide training at European level for instructors of the national border guards of Member States, including with regard to fundamental rights, access to international protection and relevant maritime law. The Agency shall draw up the common core curricula after consulting the Consultative Forum referred to in Article 26a. Member States shall integrate the common core curricula in the training of their national border guards. The Agency shall also offer additional training courses and seminars on subjects related to the control and surveillance of the external borders and return of third country nationals for officers of the competent national services of Member States. The Agency may organise training activities in cooperation with Member States on their territory. The Agency shall establish an exchange programme enabling border guards participating in the European Border Guard Teams to acquire knowledge or specific know-how from experiences and good practices abroad by working with border guards in a Member State other than their own. Article 5 is concerned with the training of officials involved in Frontex operations. 1 Of particular relevance here are two references within it to training in legal matters. The first is in the second paragraph which dates from 2011.69 It requires that Frontex should 69 The second paragraph was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 50.

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ensure training in ‘relevant’ EU and international law, including in relation to fundamental rights and access to international protection. (On the meaning of these terms, see above Article 1, MN 16 et seq.) It is specifically stated that this training should include guidelines concerning the identification of persons needing protection, and for the direction of such persons to ‘appropriate facilities’. 2 The training obligation in the second paragraph of Article 5 applies to border guards and other Member State personnel who participate in EBGTs. By virtue of Article 1a(1a), above, this covers those involved in all of joint operations, pilot projects and rapid interventions. One point of uncertainty is who the ‘other’ Member State personnel are, as Article 3b of the Regulation (above) implies that EBGTs are to be made up exclusively of Member State border guards. The training obligation is also stated to apply to Frontex staff. In their case, it is arguable that the obligation extends beyond joint operations, pilot projects and rapid interventions, to include those involved in joint returns under Article 9 (below). 3 The second reference to legal matters is in the third paragraph, which provides inter alia for Frontex to provide training ‘at the European level’ for the instructors of Member State border guards. A 2011 amendment requires that this training include provision for fundamental rights, access to international protection and maritime law.70

Article 6 This provision dealing with research has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 7 This provision dealing with technical equipment has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8 Support to Member States in circumstances requiring increased technical and operational assistance at external borders 1. Without prejudice to Article 78(3) of the Treaty on the Functioning of the European Union (‘TFEU’), one or more Member States facing specific and disproportionate pressures and confronted with circumstances requiring increased technical and operational assistance when implementing their obligations with regard to control and surveillance of external borders may request the Agency for assistance. The Agency shall in accordance with Article 3 organise the appropriate technical and operational assistance for the requesting Member State(s). 2. Under the circumstances referred to in paragraph 1, the Agency can: (a) assist on matters of coordination between two or more Member States with a view to tackling the problems encountered at external borders; 70 The first two elements were proposed by the Commission: see COM(2010) 61, p. 23–24. The reference to maritime law was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 51.

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Art. 8a

Frontex Regulation (EC) No 2007/2004

Part B IV

(b) deploy its experts to support the competent national authorities of the Member State(s) involved for the appropriate duration; (c) deploy border guards from the European Border Guard Teams. 3. The Agency may acquire technical equipment for checks and surveillance of external borders to be used by its experts and within the framework of rapid interventions for their duration. Article 8 is concerned with support for Member States in circumstances that require 1 ‘increased technical and operational assistance’. Article 8 appears unnecessary in the current version of the Regulation, as its subject-matter is covered by Article 3, as amended in 2011 (above, MN 1). In the legislative process leading to the 2011 amendments, the Commission had proposed the deletion of Article 8, but that was not accepted by the Council of Ministers.71 It is instead provided that action by Frontex relating to Article 8 is to be taken under Article 3.

Article 8a Rapid interventions At the request of a Member State faced with a situation of urgent and exceptional pressure, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State illegally, the Agency may deploy for a limited period one or more European Border Guard Teams (‘team(s)’) on the territory of the requesting Member State for the appropriate duration in accordance with Article 4 of Regulation (EC) No 863/2007. Content I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Textual analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Overview Articles 8a-8h provide for the organisation by Frontex of rapid interventions. These 1 options were first provided for in Regulation 863/2007. By comparison with joint operations, rapid interventions are expected to run for a more limited period (this Article, MN 4), are covered by a stronger presumption of Member State contribution (Article 8b, below), and have a shorter time-scale to launch (Article 8d, below). The legal framework governing rapid interventions is partly in the Frontex Regulation, and partly in the 2007 Regulation. A change in terminology with the 2011 amending Regulation saw the removal of references to ‘rapid border intervention teams’. When rapid interventions take place, they are now conducted by EBGTs (above, Article 1a, MN 5).

II. Textual analysis According to Article 8a, the substantive pre-condition to a rapid intervention is that 2 a Member State is ‘faced with a situation of urgent exceptional pressure’. It also indicates that a Member State faces such a situation especially when ‘large numbers’ of persons are ‘trying to enter … that Member State illegally’. 71

COM(2010) 61, p. 52, Council doc. 7961/11 of 25 March 2011, p. 58.

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The role of Frontex in decision-making about rapid interventions under Article 8a is different to that contemplated for joint operations and pilot projects in Article 3 (above, MN 2 and 3). Only a Member State may request a rapid intervention, and there is no provision for Frontex itself to take the initiative. Moreover, Article 8a provides that Frontex ‘may deploy’ in response to such a request, which appears to leave it discretion to decline to act. If there is an equivalent discretion under Article 3, it is implicit there. 4 Under Article 8a, any deployment should be for a ‘limited period’. Article 8a also states that, in the context of a rapid intervention, EBGTs are to be deployed ‘on the territory’ of the Member State concerned. However, provision for rapid interventions at sea added to the Regulation in 2011 (see below Article 8e, MN 275) implies that those can involve deployment from a host state’s territory. 5 Deployment of an EBGT in a rapid intervention must be ‘in accordance with’ Article 4 of Regulation 863/2007, which concerns the making available by Member States of their officers. A comparison with the provision for joint operations and pilot projects in Article 3b of the Frontex Regulation (above) reveals the following points: – Under Article 4(2) of Regulation 863/2007, decisions about the profiles and overall number of officers in the ‘rapid pool’ are made by the Frontex Management Board, on a proposal from its Executive Director, by a three-quarters’ majority. An absolute majority is required under Article 3b(1) of the Frontex Regulation. – Article 4(2) of Regulation 863/2007 states that Member States ‘shall contribute’ officials ‘via a national expert pool’, without further elaboration. In contrast, Article 3b(2) of the Frontex Regulation also provides for annual negotiation with Frontex. – The duty of a Member State to make officials available, unless they face an exceptional situation of their own, is stated in identical terms in Article 4(3) of Regulation 863/2007 and in Article 3b(2) of the Frontex Regulation. 3

Article 8b Composition of teams 1. In the event of a situation as described in Article 8a, Member States shall, at the request of the Agency, immediately communicate the number, names and profiles of border guards from their national pool which they are able to make available within five days to be members of a team. Member States shall make the border guards available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. 2. When determining the composition of a team for deployment, the Executive Director shall take into account the particular circumstances which the requesting Member State is facing. The team shall be composed in accordance with the operational plan referred to in Article 8e. 1

Article 8b concerns Member State provision to EBGTs in rapid interventions. Article 8b(1) provides that, when requested for assistance by Frontex, Member States should ‘immediately’ inform them of the details of the border guards that they can make available within five days. The starting-point is that a Member State is obliged to make the requested guards available. A Member State is not obliged to make these guards available if it is itself faced with ‘an exceptional situation substantially affecting the discharge of national tasks’.

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Art. 8d

Frontex Regulation (EC) No 2007/2004

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Article 8c This provision dealing with training and exercises of the Rapid Pool has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8d Procedure for deciding on deployment of the teams 1. A request for deployment of the teams in accordance with Article 8a shall include a description of the situation, possible aims and envisaged needs for the deployment. If required, the Executive Director may send experts from the Agency to assess the situation at the external borders of the requesting Member State. 2. The Executive Director shall immediately inform the Management Board of a Member State’s request for deployment of the teams. 3. When deciding on the request of a Member State, the Executive Director shall take into account the findings of the Agency’s risk analyses as well as any other relevant information provided by the requesting Member State or another Member State. 4. The Executive Director shall take a decision on the request for deployment of the teams as soon as possible and no later than five working days from the date of the receipt of the request. The Executive Director shall simultaneously notify the requesting Member State and the Management Board in writing of the decision. The decision shall state the main reasons on which it is based. 5. If the Executive Director decides to deploy one or more teams, the Agency together with the requesting Member State shall draw up an operational plan in accordance with Article 8e immediately, and in any event no later than five working days from the date of the decision. 6. As soon as the operational plan has been agreed, the Executive Director shall inform the Member States of the requested number and profiles of border guards which are to be deployed in the teams. This information shall be provided, in writing, to the national contact points designated under Article 8f and shall indicate the date on which the deployment is to take place. A copy of the operational plan shall also be provided to them. 7. If the Executive Director is absent or indisposed, the decisions related to the deployment of the teams shall be taken by the Deputy Executive Director. 8. Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. 9. Deployment of the teams shall take place no later than five working days after the date on which the operational plan is agreed between the Executive Director and the requesting Member State. Article 8d is concerned with the procedure for the deployment of EBGTs in rapid 1 interventions. The decision on a request is to be taken by the Executive Director within five working days. Upon receipt of a request, the Executive Director is to immediately inform the Management Board. If a decision to deploy is taken, the Executive Director and the Member State concerned are to draw up an operational plan ‘immediately’, and Ryan

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in any event within five working days.72 That is then to be communicated to the other Member States with a request for assistance. The actual deployment is to take place within five working days of the date on which the operational plan is agreed.

Article 8e Operational plan 1. The Executive Director and the requesting Member State shall agree on an operational plan detailing the precise conditions for deployment of the teams. The operational plan shall include the following: (a) description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the foreseeable duration of deployment of the teams; (c) the geographical area of responsibility in the requesting Member State where the teams will be deployed; (d) description of tasks and special instructions for members of the teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; (e) the composition of the teams, as well as the deployment of other relevant staff; (f) command and control provisions, including the names and ranks of the border guards of the host Member State responsible for cooperating with the teams, in particular of those border guards who are in command of the teams during the period of deployment, and the place of the teams in the chain of command; (g) the technical equipment to be deployed together with the teams, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; (h) detailed provisions on immediate incident reporting by the Agency to the Management Board and to relevant national public authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report in accordance with Article 3(3); (j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the rapid intervention takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation; (k) modalities of cooperation with third countries, other Union agencies and bodies or international organisations. 2. Any amendments to or adaptations of the operational plan shall require the agreement of both the Executive Director and the requesting Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 1

The content of operational plans for rapid interventions is provided for in Article 8e(1). It is in very similar terms to the provision made in Article 3a (above) for operational plans for joint operations and pilot projects. (It should be noted that Article 8e dates from the 2007 Regulation, whereas Article 3a dates from the 2011 amending Regulation.) 72 The reference to a maximum of five working days in drawing up the operational plan was added by the 2011 amendments.

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Art. 9

Frontex Regulation (EC) No 2007/2004

Part B IV

Point (c) requires that the operational plan include information concerning ‘the 2 geographical area of responsibility in the requesting Member State where the teams will be deployed’. This is in contrast to Article 3a(1)(c), which does not contain the words ‘in the requesting Member State’. While this might be thought to imply that a host state territory cannot be the base for operations elsewhere, it must be read together with the provision for sea operations in Article 8e(1)(j), added in 2011. One change made to Article 8e(1) in 2011 was the addition of a reference to ‘other 3 relevant staff’ in point (e). While this phrase is not defined, its inclusion caters for the possibility that some of the personnel involved will be Frontex staff.73 Another change to the earlier version saw the inclusion of the words ‘command and control provisions’ in point (f). The inclusion of those words here implies a more extensive requirement than the previous version, which had merely required information as to the ‘names and ranks’ of those involved in co-operation or with a command role.

Article 8f This provision dealing with national contact points has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8g Coordinating Officer This provision dealing with national contact points has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8h This provision dealing with the meeting of Member State costs by Frontex has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 9 Return cooperation 1. Subject to the return policy of the Union, and in particular Directive 2008/115/ EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals(14), and without entering into the merits of return decisions, the Agency shall provide the necessary assistance, and at the request of the participating Member States ensure the coordination or the organisation of joint return operations of Member States, including through the chartering of aircraft for the purpose of 73 See the references to Frontex ‘staff’ in Article 3a(3), Article 3b(4) – which expressly contemplates temporary staff – Article 8g(1) and Article 17. (14) OJ L 348, 24.12.2008, p. 98.

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such operations. The Agency shall finance or co-finance the operations and projects referred to in this paragraph with grants from its budget in accordance with the financial rules applicable to the Agency. The Agency may also use financial means of the Union available in the field of return. The Agency shall ensure that in its grant agreements with Member States any financial support is conditional upon the full respect for the Charter of Fundamental Rights. 1a. The Agency shall develop a Code of Conduct for the return of illegally present third-country nationals which shall apply during all joint return operations coordinated by the Agency, describing common standardised procedures which should simplify the organisation of joint return operations and assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the rights to the protection of personal data and non-discrimination. 1b. The Code of Conduct shall in particular pay attention to the obligation set out in Article 8(6) of Directive 2008/115/EC to provide for an effective forced-return monitoring system and to the Fundamental Rights Strategy referred to in Article 26a(1) of this Regulation. The monitoring of joint return operations should be carried out on the basis of objective and transparent criteria and cover the whole joint return operation from the pre-departure phase until the hand-over of the returnees in the country of return. 1c. Member States shall regularly inform the Agency of their needs for assistance or coordination by the Agency. The Agency shall draw up a rolling operational plan to provide the requesting Member States with the necessary operational support, including technical equipment referred to in Article 7(1). The Management Board shall decide in accordance with Article 24 on a proposal of the Executive Director, on the content and modus operandi of the rolling operational plan. 2. The Agency shall cooperate with the competent authorities of the third countries referred to in Article 14 to identify best practices on the acquisition of travel documents and the return of illegally present third-country nationals. Article 9 elaborates Frontex’s mandate to assist with joint return operations by air (above, Article 2, MN 6). Article 9(1) of the original version referred exclusively to Frontex ‘assistance’ in organising what were termed ‘joint return operations of Member States’. That was a weaker formulation than the Commission proposal, which would have permitted Frontex to co-ordinate or organise return operations.74 After amendments in 2011, Frontex coordination is now provided for, if requested by participating Member States.75 In particular, Frontex’s role may extend to chartering the aircraft to be used in return operations, and it may finance these operations in whole or in part. 2 Any Frontex action in this area is subject to the EU’s ‘return policy’. The core of that policy is Directive 2008/115, which lays down standards to be met by Member States when they return third-country nationals who lack immigration permission.76 Also relevant is Council Decision 2004/573/EC, which lays down ground-rules for the coordination of join return flights among member states.77 1

74 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 370. Compare COM(2003) 687, p. 21 and Council doc. 9018/04 of 30 April 2004, p. 11. 75 The Commission proposal referred to ‘coordination for organising joint return operations’: COM(2010) 61, p. 26. The Parliament initially proposed the eventual formulation, ‘the coordination or the organisation of joint return operations’: see Council doc. 7961/11 of 25 March 2011, p. 62. 76 OJ 2008 L 348/98. 77 OJ 2004 L 261/28.

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Art. 10

Frontex Regulation (EC) No 2007/2004

Part B IV

Amendments to Article 9 in 2011 sought to strengthen the protection of funda- 3 mental rights in the context of return operations. Frontex is to ensure that financial support for Member States is conditional upon their full respect for the ChFR (Article 9(1)). A Code of Conduct for return operations is to be developed which will inter alia ensure return ‘in a humane manner’, and with full respect for fundamental rights’, including human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, liberty and security, the protection of personal data, and nondiscrimination (Article 9(1a)). The Code of Conduct is also to ‘pay particular attention’ to the Frontex Fundamental Rights Strategy provided for in Article 26a, below (Article 9(1)(b)).78 Article 9(1b) makes provision for the monitoring of return operations. The matters 4 to which the Code of Conduct is to ‘pay particular attention’ include the obligation in Article 8(6) of the Return Directive that Member States have a ‘forced-return monitoring system’. One implication is that Frontex is to require Member States to engage in effective monitoring, and that is indeed the position taken in the 2013 Code of Conduct. To the extent that Frontex itself has the organisational lead, a different conclusion could be drawn, that it should also carry out the monitoring on the Member States’ behalf. In relation to the content of the monitoring, Article 9(1b) provides that it should be based on ‘objective and transparent criteria’, and that it should cover the whole process, from the pre-departure phase to the hand-over in the country of return. To this, the 2013 Code of Conduct adds that monitoring should ‘involve’ independent organisations.79

Article 10 Tasks and powers of guest officers 1. Guest officers shall have the capacity to perform all tasks and exercise all powers for border checks or border surveillance in accordance with Regulation (EC) No 562/ 2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)(15), and that are necessary for the realisation of the objectives of that Regulation. 2. While performing their tasks and exercising their powers, guest officers shall comply with Union and international law, and shall observe fundamental rights and the national law of the host Member State. 3. Guest officers may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State. 4. Guest officers shall wear their own uniform while performing their tasks and exercising their powers. They shall wear a blue armband with the insignia of the European Union and the Agency on their uniforms, identifying them as participating in a joint operation or pilot project. For the purposes of identification vis-a`-vis the national authorities of the host Member State and its citizens, guest officers shall at all times carry an accreditation document, as provided for in Article 10a, which they shall present on request.

78 The Code was adopted on 7 October 2013, and is available at http://frontex.europa.eu/assets/ Publications/General/Code_of_Conduct_for_Joint_Return_Operations.pdf [last accessed 8 July 2015]. 79 Ibid., Article 13(2). (15) OJ L 105, 13.4.2006, p. 1.

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5. By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers may carry service weapons, ammunition and equipment as authorised according to the home Member State’s national law. However, the host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own legislation applies the same prohibition to its own border guards. The host Member State shall, in advance of the deployment of the guest officers, inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member States. 6. By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the host Member State, in the presence of border guards of the host Member State and in accordance with the national law of the host Member State. 7. By way of derogation from paragraph 6, service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of guest officers or of other persons, in accordance with the national law of the host Member State. 8. For the purpose of this Regulation, the host Member State may authorise guest officers to consult its national and European databases which are necessary for border checks and surveillance. The guest officers shall consult only those data which are required for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the guest officers, inform the Agency of the national and European databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment. 9. The consultation as referred to in paragraph 8 shall be carried out in accordance with Community law and the national law of the host Member State in the area of data protection. 10. Decisions to refuse entry in accordance with Article 13 of Regulation (EC) No 562/2006 shall be taken only by border guards of the host Member State. Article 10 is concerned with the legal position of ‘guest officers’. That term is defined by Article 1a(6) to mean officers of a Member State other than a host state, who are participating in joint operations or pilot projects. (In relation to rapid interventions, see MN 8 to this Article.) In its original version, Article 10 contemplated the exercise of executive powers both by Frontex staff and by other Member States’ officers. The 2007 Regulation removed this reference to the possibility of executive power being exercised by Frontex staff. 2 Article 10(1) provides that guest officers are permitted to carry out all tasks, and to exercise all powers, in connection with border control and surveillance, if these are ‘in accordance with’ the Schengen Borders Code, or are necessary for the realisation of its objectives. Article 10(1) ensures that guest officers act under EU law alone, and accordingly that they are not at the disposal of the host member state for other tasks.80 3 The statement of the applicable legal framework in Article 10(2) has had three different versions. In 2004, the only paragraph of Article 10 stated simply that what would now be termed guest officers were ‘subject to the national law of the host Member State.’ In 2007, the new Article 10(2) was amended to state that guest officers had to comply with EC law as well. In addition to replacing that with a reference to EU law, the 2011 amending Regulation added references to international law and funda1

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On the first of these points, see Mungianu, EJML 15 (2013), p. 382.

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Art. 10a

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mental rights. (For the meaning of those terms, see Article 1a, above, MN 20 and 19, respectively). Article 10(3), added in 2007, requires that guest officers carry out their activities ‘under instructions from’ border officials of the host state. They are also ‘as a general rule’ to carry out their activities in the presence of host state officials. Under Article 10(4), added in 2007, guest officers wear their own uniform, with a blue armband bearing the insignia of the EU and of Frontex. They are also to carry an accreditation document – the details of which are specified in Article 10a of the Regulation (below) – to enable them to identify themselves to the authorities of the host state, and to ‘its citizens’. Articles 10(5), (6) and (7), added in 2007, lay down a special regime in relation to service weapons and the use of force. Article 10(5) provides that a guest officer may carry service weapons, ammunition and equipment only if that is authorised by their home state law, and only if the host state law permits these to be carried by its own officers. Article 10(6) sets out the general rule that the use of force by guest officers – including the use of service weapons, etc – is permitted only with the consent of both states, only in the presence of home state border officials, and only in accordance with the host state’s law. Article 10(7) then provides a partial exception to that rule, that service weapons, etc. may be used in self-defence, or in defence of another person, if that is in accordance with the host state’s law. Article 10(10), added in 2007, provides that any decision to refuse entry must be taken by the host state’s own border officials. One implication is that guest officers involved in border checks may permit someone to enter, if that is compatible with the Schengen Borders Code. The involvement of guest officers in rapid interventions is not covered by Article 10, but instead by similar provisions in Article 6 of Regulation 863/2007. The only substantive differences concern the general legal obligations upon guest officers. Whereas Article 10(2) of the Frontex Regulation refers in general terms to EU law, international law, fundamental rights and national law, Article 6(2) of Regulation 863/ 2007 is silent in relation to these sources.

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Article 10a Accreditation document 1. The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the European Union to guest officers for the purpose of identifying them and as proof of the holder’s rights to perform the tasks and exercise the powers as referred to in Article 10(1). The document shall include the following features of the guest officer: (a) name and nationality; (b) rank; and (c) a recent digitised photograph. 2. The document shall be returned to the Agency at the end of the joint operation or pilot project. Article 10a provides for the accreditation document referred to in Article 10 (above, 1 MN 5). This is to be issued to guest officers by Frontex, in cooperation with the host Member State of the operation. It is to be in an official language of the host Member Ryan

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Part B IV Art. 10c

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State81 and another official language of the EU institutions. The document is to refer to the guest officer’s name and nationality82, and their rank, and is to include a recent digitised photograph.

Article 10b Civil liability 1. Where guest officers are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations. 2. Where such damage is caused by gross negligence or wilful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State. 3. Without prejudice to the exercise of its rights vis-a`-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconduct. 4. Any dispute between Member States relating to the application of paragraphs 2 and 3 which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice of the European Communities in accordance with Article 239 of the Treaty. 5. Without prejudice to the exercise of its rights vis-a`-vis third parties, the Agency shall meet costs related to damage caused to the Agency’s equipment during deployment, except in cases of gross negligence or wilful misconduct. 1

Article 10b, added in 2007, concerns civil liability arising out of Frontex operations. Article 10b(1) provides that, where a guest officer causes damage during a Frontex operation, liability falls on the host Member State, and not on the home Member State or Frontex. Where the damage is the result of gross negligence or wilful misconduct, the host Member State may approach the home sate for reimbursement (Article 10b(2)). Member States are required to waive any legal rights they may have towards one another concerning damage they suffer, except in cases of gross negligence or wilful misconduct (Article 10b(3)). Equally, Frontex is to bear the costs of damage caused to its own equipment, except in cases of gross negligence or wilful misconduct (Article 10b(4)).

Article 10c Criminal liability During the deployment of a joint operation or a pilot project, guest officers shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them. 1

Article 10c, added in 2007, provides that the criminal law of a host Member State applies fully to guest officers. This is the case both for offences they might commit, and for offences potentially committed against them. 81

Article 10a says ‘the official language, though in some states there is more than one. The Regulation does not contemplate the possibility that an official might have a different nationality to that of their home state. 82

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Art. 12

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 11 This provision dealing with the exchange of information has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11a This provision dealing with data protection has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11b This provision, dealing with the processing of personal data in joint return operations, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11c This provision, dealing with the processing of personal data collected during joint operations, pilot projects and rapid interventions, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11ca This provision, dealing with the processing of personal data in the framework of EUROSUR, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11d This provision, dealing with classified and sensitive information, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 12 Cooperation with Ireland and the United Kingdom 1. The Agency shall facilitate operational cooperation of the Member States with Ireland and the United Kingdom in matters covered by its activities and to the extent required for the fulfilment of its tasks set out in Article 2(1). Ryan

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2. Support to be provided by the Agency pursuant to Article 2(1)(f) shall cover the organisation of joint return operations of Member States in which Ireland or the United Kingdom, or both, also participate. 3. The application of this Regulation to the borders of Gibraltar shall be suspended until the date on which an agreement is reached on the scope of the measures concerning the crossing by persons of the external borders of the Member States. Article 12(1) permits Frontex to facilitate co-operation, within its remit, between the Schengen states and Ireland and the UK. By virtue of Article 12(2), Frontex may also provide support to those states in connection with joint return operations. 2 Article 12(3) has the effect of excluding ‘the borders of Gibraltar’ from Frontex’s remit. This provision is necessary because Gibraltar is part of the EU, but outside of the Schengen zone, and its frontier with Spain would otherwise be classed as an external border. (See above, Article 1a MN 4). As is indicated in recital 28 to the Regulation, the background to this provision is a dispute between the UK and Spain as to the location of the territorial frontier between Gibraltar and Spain. 1

Article 13 This provision, dealing with cooperation with Union agencies and bodies and international organisations, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 14 Facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries 1. In matters covered by its activities and to the extent required for the fulfilment of its tasks, the Agency shall facilitate operational cooperation between Member States and third countries, within the framework of the external relations policy of the Union, including with regard to human rights. The Agency and the Member States shall comply with norms and standards at least equivalent to those set by Union legislation also when cooperation with third countries takes place on the territory of those countries. The establishment of cooperation with third countries shall serve to promote European border management standards, also covering respect for fundamental rights and human dignity. 2. The Agency may cooperate with the authorities of third countries competent in matters covered by this Regulation within the framework of working arrangements concluded with those authorities, in accordance with the relevant provisions of the TFEU. Those working arrangements shall be purely related to the management of operational cooperation. 3. The Agency may deploy its liaison officers, who should enjoy the highest possible protection to carry out their duties, in third countries. They shall form part of the local or regional cooperation networks of immigration liaison officers of the Member States set up pursuant to Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network(18). Liaison (18)

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Art. 14

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officers shall only be deployed to third countries in which border management practices comply with minimum human rights standards. Their deployment shall be approved by the Management Board. Within the framework of the external relations policy of the Union, priority for deployment should be given to those third countries, which on the basis of risk analysis constitute a country of origin or transit regarding illegal migration. On a reciprocal basis the Agency may receive liaison officers posted by those third countries also, for a limited period of time. The Management Board shall adopt, on a proposal of the Executive Director and in accordance with Article 24, the list of priorities on a yearly basis. 4. The tasks of the Agency’s liaison officers shall include, in compliance with Union law and in accordance with fundamental rights, establishing and maintaining contacts with the competent authorities of the third country to which they are assigned with a view to contributing to the prevention of and fight against illegal immigration and the return of illegal migrants. 5. The Agency may benefit from Union funding in accordance with the provisions of the relevant instruments supporting the external relations policy of the Union. It may launch and finance technical assistance projects in third countries regarding matters covered by this Regulation. 6. The Agency may also, with the agreement of the Member State(s) concerned invite observers from third countries to participate in its activities referred to in Articles 3, 4 and 5, to the extent that their presence is in accordance with the objectives of those activities, may contribute to improving cooperation and the exchange of best practices, and does not affect the overall safety of those activities. The participation of those observers may take place only with the agreement of the Member State(s) concerned regarding the activities referred to in Articles 4 and 5 and only with the agreement of the host Member State regarding those referred to in Article 3. Detailed rules on the participation of observers shall be included in the operational plan referred to in Article 3a(1). Those observers shall receive the appropriate training from the Agency prior to their participation. 7. When concluding bilateral agreements with third countries as referred to in Article 2(2), Member States may include provisions concerning the role and competence of the Agency, in particular regarding the exercise of executive powers by members of the teams deployed by the Agency during the joint operations or pilot projects referred to in Article 3. 8. The activities referred to in paragraphs 2 and 3 of this Article shall be subject to receiving a prior opinion of the Commission, and the European Parliament shall be fully informed of those activities as soon as possible. Article 14(1) permits Frontex to facilitate Member State operational co-operation 1 with third countries (i. e. non-Schengen states). Amendments in 2011 added various fundamental rights-oriented qualifications to this provision. The second paragraph of Article 14(1) requires Frontex and the Member States to ‘comply with norms and standards at least equivalent to those set by Union legislation’ if any cooperation ‘takes place on the territory of’ third state. This provision lacks specificity as to the norms and standards in question, while leaving open the possibility that the third state itself might act in a manner that EU law would not permit. Two more general statements concerning fundamental rights within Article 14(1) must be considered vague in their implications. According to its first paragraph, Frontex should act ‘within the framework’ of the EU’s external relations policy, ‘including with regard to human rights’. Its third paragraph adds that co-operation with third states Ryan

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‘shall serve to promote European border management standards’, including ‘respect for fundamental rights and human dignity’. 2 Article 14(2) permits Frontex to develop working arrangements with the authorities of third states. Though it is stated that these arrangements are to respect ‘the relevant provisions of the TFEU’, it is not immediately apparent which provisions are contemplated. Under Article 14(8), there is a duty to request the opinion of the Commission prior to any such arrangements, and to keep the Parliament fully informed of them.

CHAPTER III STRUCTURE Article 15 This provision, dealing with the legal status and location of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 15a This provision, dealing with a headquarters agreement for Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 16 This provision, dealing with specialised branches of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 17 This provision, dealing with the Regulations applicable to Frontex staff, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 18 This provision, dealing with the privileges and immunities of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 19 This provision, dealing with the civil liability rules applicable to Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text. 232

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Art. 20

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 20 Powers of the Management Board 1. The Agency shall have a Management Board. 2. The Management Board shall: (a) appoint the Executive Director on a proposal from the Commission in accordance with Article 26; (b) before 31 March each year, adopt the general report of the Agency for the previous year and forward it by 15 June at the latest to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Court of Auditors. The general report shall be made public; (c) before 30 September each year, and after receiving the opinion of the Commission, adopt, by a three-quarters majority of its members with a right to vote, the Agency’s programme of work for the coming year and forward it to the European Parliament, the Council and the Commission; this programme of work shall be adopted according to the annual Community budgetary procedure and the Community legislative programme in relevant areas of the management of external borders; (d) establish procedures for taking decisions related to the operational tasks of the Agency by the Executive Director; (e) carry out its functions relating to the Agency’s budget pursuant to Articles 28, 29(5), (9) and (11), Article 30(5) and Article 32; (f) exercise disciplinary authority over the Executive Director and over the Deputy Director, in agreement with the Executive Director; (g) establish its Rules of Procedure; (h) establish the organisational structure of the Agency and adopt the Agency’s staff policy, in particular the multiannual staff policy plan. In accordance with the relevant provisions of the Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(19) the multiannual staff policy plan shall be submitted to the Commission and the budgetary authority after receiving a favourable opinion of the Commission; (i) adopt the Agency’s multiannual plan aiming at outlining the future long term strategy regarding the activities of the Agency. 3. Proposals for decisions on specific activities to be carried out at, or in the immediate vicinity of, the external border of any particular Member State shall require a vote in favour of their adoption by the Member of the Management Board representing that Member State. 4. The Management Board may advise the Executive Director on any matter strictly related to the development of operational management of the external borders, including activities related to research provided for in Article 6. 5. Should Ireland and/or the United Kingdom request to participate in the Agency’s activities, the Management Board shall decide thereon. The Management Board shall take its decision on a case-by-case basis by an absolute majority of its members with a right to vote. In its decision, the Manage(19)

OJ L 357, 31.12.2002, p. 72.

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ment Board shall consider if the participation of Ireland and/or the United Kingdom contributes to the achievement of the activity in question. The decision shall set out the financial contribution of Ireland and/or the United Kingdom to the activity for which a request for participation has been made. 6. The Management Board shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures. 7. The Management Board may establish an Executive Bureau to assist it and the Executive Director with regard to the preparation of the decisions, programmes and activities to be adopted by the Management Board and when necessary, because of urgency, to take certain provisional decisions on behalf of the Management Board. The powers of the Frontex Management Board are set out in Article 20(2). These include the appointment of the Executive Director, the adoption of Frontex’s annual general report, and the adoption of its annual programme of work. The position of individual Member State is protected by Article 20(3), which requires that a decision to approve activities ‘at, or in the immediate vicinity of’ its external border require that state’s representative on the Management Board to vote in favour. 2 The position of Ireland and the UK is addressed in Article 20(5). If they request to participate in Frontex activities, that must be approved on a case-by-case basis, and requires an absolute majority of Management Board members to vote in favour. 1

Article 21 Composition of the Management Board 1. Without prejudice to paragraph 3, the Management Board shall be composed of one representative of each Member State and two representatives of the Commission. To this effect, each Member State shall appoint a member of the Management Board as well as an alternate who will represent the member in his/her absence. The Commission shall appoint two members and their alternates. The duration of the terms of office shall be four years. The terms of office shall be extendable. 2. The Management Board members shall be appointed on the basis of their degree of high level relevant experience and expertise in the field of operational cooperation on border management. 3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall have one representative and one alternate each in the Management Board. Under the relevant provisions of their association agreements, arrangements have been developed that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, including provisions on financial contributions and staff. Article 21(1) provides for the composition of the Management Board. It is made up of one representative for each participating Member State, together with two Commission representatives. Non-EU associated states – i. e. Iceland, Liechtenstein, Norway and Switzerland – also have a member on the board (Article 21(3)). A separate provision states that Ireland and the UK must be invited to attend Management Board meetings (Article 23(4)). 2 There is a general eligibility rule, that members of the Management Board should have a high level of experience and expertise in relation to of operational cooperation in border management (Article 21(2)). 1

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Art. 26a

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 22 This provision, dealing with the chairmanship of the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 23 This provision, dealing with meetings of the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 24 This provision, dealing with voting on the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 25 This provision, dealing with the functions and powers of the Executive Director, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 26 This provision, dealing with the appointment of Frontex senior officials, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 26a Fundamental Rights Strategy 1. The Agency shall draw up and further develop and implement its Fundamental Rights Strategy. The Agency shall put in place an effective mechanism to monitor the respect for fundamental rights in all the activities of the Agency. 2. A Consultative Forum shall be established by the Agency to assist the Executive Director and the Management Board in fundamental rights matters. The Agency shall invite the European Asylum Support Office, the Fundamental Rights Agency, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the Consultative Forum. On a proposal by the Executive Director, the Management Board shall decide on the composition and the working methods of the Consultative Forum and the modalities of the transmission of information to the Consultative Forum.

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The Consultative Forum shall be consulted on the further development and implementation of the Fundamental Rights Strategy, Code of Conduct and common core curricula. The Consultative Forum shall prepare an annual report of its activities. That report shall be made publicly available. 3. A Fundamental Rights Officer shall be designated by the Management Board and shall have the necessary qualifications and experience in the field of fundamental rights. He/she shall be independent in the performance of his/her duties as a Fundamental Rights Officer and shall report directly to the Management Board and the Consultative Forum. He/she shall report on a regular basis and as such contribute to the mechanism for monitoring fundamental rights. 4. The Fundamental Rights Officer and the Consultative Forum shall have access to all information concerning respect for fundamental rights, in relation to all the activities of the Agency. 1

The insertion of Article 26a was among the main fundamental rights-related innovations made by the 2011 Regulation. It provides for Frontex to draw up a fundamental rights strategy, and to have in place an effective mechanism for monitoring respect for fundamental rights in its activities (both in Article 26a(1)). A Consultative Forum on fundamental rights matters is to be set up, in which the European Asylum Support Office, the EU Fundamental Rights Agency, UNHCR and ‘other relevant organisations’ are to be invited to participate (Article 26a(2)).83 Frontex should also appoint a Fundamental Rights Officer, who will report directly to the Management Board and to the Consultative Forum (Article 26a(3)).

Article 27 This provision, dealing with translation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 28 This provision, dealing with transparency and communication, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER IV FINANCIAL REQUIREMENTS Article 29 This provision, dealing with the Frontex budget, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text. 83 The list of organisations represented on the Consultative Forum may be found here: http:// frontex.europa.eu/partners/consultative-forum/general-information/[last accessed 8 July 2015].

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Art. 34

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 30 This provision, dealing with Implementation and control of the Frontex budget, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 31 This provision, dealing with arrangements for combating fraud, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 32 This provision, dealing with the financial rules applicable to Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER V FINAL PROVISIONS Article 33 This provision, dealing with the evaluation of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 34 This provision, dealing with the entry into force of the Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

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V. Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union Official Journal L 189, 27/06/2014, p. 93–107 Selected Bibliography: Barnes, ‘The International Law of the Sea and Migration Control’ in: Ryan/ Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 103–150; Den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265; Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009); Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’, IJRL 23 (2011), p. 174–220; Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, Human Rights Law Review 12 (2012), p. 574–598; Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’, IJRL 14 (2002), p. 330–364; Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart, 2014); Ryan, ‘Extraterritorial Immigration Control: What Role for Legal Guarantees?’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 3–38; Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014), p. 212–260; Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’, International Journal of Marine and Coastal Law 25 (2010), p. 523–542.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular point (d) of Article 77(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure(1), Whereas: (1) The objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the crossing of external borders including through border surveillance, while contributing to ensuring the protection and saving of lives. The purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against those persons who have crossed the border in an irregular manner. Border surveillance should be effective in preventing and discouraging persons from circumventing the checks at border crossing points. To this end, border surveillance is not limited to the detection of attempts at unauthorised border crossings but equally extends to steps such as intercepting vessels suspected of trying to gain entry to the Union without submitting to border checks, as well as arrangements intended to address situations such as search and rescue that may arise during a border surveillance operation at sea and arrangements intended to bring such an operation to a successful conclusion. (1) Position of the European Parliament of 16 April 2014 (not yet published in the Official Journal) and decision of the Council of 13 May 2014.

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Sea Borders Regulation (EU) No 656/2014

(2) The policies of the Union in border management, asylum and immigration and their implementation should be governed by the principle of solidarity and fair sharing of responsibility between the Member States pursuant to Article 80 of the Treaty on the Functioning of the European Union (TFEU). Wherever necessary, Union acts adopted in the framework of those policies are to contain appropriate measures to give effect to that principle and promote burden-sharing including through the transfer, on a voluntary basis, of beneficiaries of international protection. (3) The scope of application of this Regulation should be limited to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’) established by Council Regulation (EC) No 2007/2004(2). Investigative and punitive measures are governed by national criminal law and the existing instruments of mutual legal assistance in the field of judicial cooperation in criminal matters in the Union. (4) The Agency is responsible for the coordination of operational cooperation between Member States in the field of management of the external borders, including as regards border surveillance. The Agency is also responsible for assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account the fact that some situations may involve humanitarian emergencies and rescue at sea. Specific rules with regard to border surveillance activities carried out by maritime, land and aerial units of one Member State at the sea border of other Member States or on the high seas in the context of operational cooperation coordinated by the Agency are necessary to further strengthen such cooperation. (5) Cooperation with neighbouring third countries is crucial to prevent unauthorised border crossings, to counter cross-border criminality and to avoid loss of life at sea. In accordance with Regulation (EC) No 2007/2004 and insofar as full respect for the fundamental rights of migrants is ensured, the Agency may cooperate with the competent authorities of third countries, in particular as regards risk analysis and training, and should facilitate operational cooperation between Member States and third countries. When cooperation with third countries takes place on the territory or the territorial sea of those countries, the Member States and the Agency should comply with norms and standards at least equivalent to those set by Union law. (6) The European Border Surveillance System (Eurosur) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council(3) aims to strengthen the information exchange and operational cooperation between Member States and with the Agency. That is to ensure that the situational awareness and reaction capability of Member States improves considerably, also with the support of the Agency, for the purposes of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants at their external borders. When coordinating border surveillance operations, the Agency should provide Member States with information and analysis concerning those operations in accordance with that Regulation. (2) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1). (3) Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ L 295, 6.11.2013, p. 11).

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(7) This Regulation replaces Council Decision 2010/252/EU(4) which was annulled by the Court of Justice of the European Union (‘the Court’) by its judgment of 5 September 2012 in Case C-355/10. In that judgment, the Court maintained the effects of Decision 2010/252/EU until the entry into force of new rules. Therefore, as of the day of entry into force of this Regulation, that Decision ceases to produce effects. (8) During border surveillance operations at sea, Member States should respect their respective obligations under international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments. (9) When coordinating border surveillance operations at sea, the Agency should fulfil its tasks in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), and relevant international law, in particular that referred to in recital 8. (10) In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council(5) and general principles of Union law, any measure taken in the course of a surveillance operation should be proportionate to the objectives pursued, non-discriminatory and should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European Parliament and of the Council(6) with regard to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of Member States. (11) The application of this Regulation should be without prejudice to Directive 2011/36/EU of the European Parliament and the Council(7), in particular as regards assistance to be given to victims of trafficking in human beings. (12) This Regulation should be applied in full compliance with the principle of nonrefoulement as defined in the Charter and as interpreted by the case-law of the Court and of the European Court of Human Rights. In accordance with that principle, no person should be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be (4) Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 111, 4.5.2010, p. 20). (5) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (6) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180, 29.6.2013, p. 60). (7) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1).

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threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. (13) The possible existence of an arrangement between a Member State and a third country does not absolve Member States from their obligations under Union and international law, in particular as regards compliance with the principle of nonrefoulement, whenever they are aware or ought to be aware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that third country amount to substantial grounds for believing that the asylum seeker would face a serious risk of being subjected to inhuman or degrading treatment or where they are aware or ought to be aware that that third country engages in practices in contravention of the principle of non-refoulement. (14) During a border surveillance operation at sea, a situation may occur where it will be necessary to render assistance to persons found in distress. In accordance with international law, every State must require the master of a vessel flying its flag, in so far as he can do so without serious danger to the vessel, the crew or the passengers, to render assistance without delay to any person found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. Such assistance should be provided regardless of the nationality or status of the persons to be assisted or of the circumstances in which they are found. The shipmaster and crew should not face criminal penalties for the sole reason of having rescued persons in distress at sea and brought them to a place of safety. (15) The obligation to render assistance to persons found in distress should be fulfilled by Member States in accordance with the applicable provisions of international instruments governing search and rescue situations and in accordance with requirements concerning the protection of fundamental rights. This Regulation should not affect the responsibilities of search and rescue authorities, including for ensuring that coordination and cooperation is conducted in such a way that the persons rescued can be delivered to a place of safety. (16) When the operational area of a sea operation includes the search and rescue region of a third country, the establishment of communication channels with the search and rescue authorities of that third country should be sought when planning a sea operation, thereby ensuring that those authorities will be able to respond to search and rescue cases developing within their search and rescue region. (17) Pursuant to Regulation (EC) No 2007/2004, border surveillance operations coordinated by the Agency are conducted in accordance with an operational plan. Accordingly, as regards sea operations, the operational plan should include specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation, pilot project or rapid intervention takes place, including references to Union and international law regarding interception, rescue at sea and disembarkation. The operational plan should be established in accordance with the provisions of this Regulation governing interception, rescue at sea and disembarkation in the context of border surveillance operations at sea coordinated by the Agency and having regard to the particular circumstances of the operation concerned. The operational plan should include procedures ensuring that persons with international protection needs, victims of trafficking in human beings, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance, including access to international protection.

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(18) The practice under Regulation (EC) No 2007/2004 is that for each sea operation, a coordination structure is established within the host Member State, composed of officers from the host Member State, guest officers and representatives of the Agency, including the Coordinating Officer of the Agency. This coordination structure, usually called International Coordination Centre, should be used as a channel for communication between the officers involved in the sea operation and the authorities concerned. (19) This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and by the Charter, in particular respect for human dignity, the right to life, the prohibition of torture and of inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right to asylum and to protection against removal and expulsion, the principles of non-refoulement and non-discrimination, the right to an effective remedy and the rights of the child. This Regulation should be applied by Member States and the Agency in accordance with those rights and principles. (20) Since the objective of this Regulation, namely to adopt specific rules for the surveillance of the sea borders by border guards operating under the coordination of the Agency, cannot be sufficiently achieved by the Member States due to the differences in their laws and practices, but can rather, by reason of the multinational character of the operations, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (21) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law. (22) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis(8) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC(9). (23) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(10) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC(11). (8)

OJ L 176, 10.7.1999, p. 36. Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). (10) OJ L 53, 27.2.2008, p. 52. (11) Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss (9)

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(24) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(12), which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU(13). (25) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC(14); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (26) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC(15); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application, HAVE ADOPTED THIS REGULATION:

CHAPTER I GENERAL PROVISIONS Article 1 Scope This Regulation shall apply to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Textual analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). (12) OJ L 160, 18.6.2011, p. 21. (13) Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19). (14) Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43). (15) Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).

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I. General Remarks Regulation 656/2014 is known as the ‘Sea Borders Regulation’. It sets out a legal framework for Member States, and vessels under their command, that are involved in the surveillance of the Schengen external sea border, within operations co-ordinated by Frontex. Its provisions cover both the interception of vessels for border control purposes, and the associated rescue of persons at sea. 2 The background to the Regulation is a sustained pattern of irregular migration by sea, since around 2000, towards southern EU states.1 These phenomena have principally involved departures from Morocco, Senegal and Mauritius towards Spanish territory; from Libya and Tunisia towards Italian territory and Malta; and, from Turkey towards Greece. A central response to migration along irregular sea routes has been arrangements by Italy and Spain with states of departure, aimed at prevention of departure and/ or interception-and return.2 These arrangements have typically involved Frontex in providing direct or indirect support for their implementation. 3 An especially controversial interception-and-return arrangement operated between Italy and Libya in 2009 and 2010.3 That arrangement was effectively declared contrary to the ECHR in Hirsi Jamaa in 2012.4 In its judgment, the ECtHR firstly held that ECHR principles apply when a contracting state’s vessel intercepts or rescues migrants on the high seas, as it thereby acquires de jure and de facto control over them. It went on to find that the actual return of the applicants to Libya breached the prohibition on inhuman or degrading treatment or punishment in Article 3 ECHR; the prohibition on collective expulsion in Article 4 of Protocol 4 to the ECHR; and, the guarantee of effective remedies in Article 13 ECHR. The principles laid down in Hirsi Jamaa govern Member State and Frontex operations at sea, both because of the ECHR framework, and because of equivalent provisions of the ChFR.5 Moreover, as the situation of irregular migrants in Libya does not appear to have improved since 2009–2010, the Hirsi Jamaa ruling presumably continues to preclude Member State vessels from returning persons intercepted or rescued at sea to Libya. 4 The deaths of migrants at sea, and the related question of provision of search and rescue by Member States and Frontex, have also been recurrent subjects of political controversy.6 That has been especially true in the period of conflict in Libya since 2011, 1

1 See Ryan in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges, p. 31–35; Fargues/Bonfanti, When the best option is a leaky boat: Why migrants risk their lives crossing the Mediterranean and what Europe is doing (Migration Policy Centre, European University Institute, 2014). 2 See the chapters by Di Pascale, ‘Migration control at sea: The Italian case’, (p. 281–309), Garcı´a Andrade, ‘Extraterritorial strategies to tackle irregular immigration by sea: A Spanish perspective’ (p. 318–333), in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges. 3 See Di Pascale, ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’, in: Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014), p. 303–305; Triandafyllidou/Dimitriadi ‘Migration Management at the Outposts of the European Union: The Case of Italy’s and Greece’s Borders’, Griffith Law Review 22 (2013), p. 598, 604–608. 4 ECtHR (Grand Chamber), Judgement of 23 February 2012, No. 27765/09,. Hirsi Jamaa and others v. Italy. For a detailed discussion, see den Heijer, IJRL 25 (2013), p. 265; Moreno-Lax, Human Rights Law Review 12 (2012), p. 574–598, Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 252–257. 5 See Articles 4, 19 and 47 ChFR. Among the 32 EU and associated Schengen states, Greece, Switzerland and the UK are not parties to Protocol 4 to the ECHR. For those states, the prohibition on collective expulsion in Article 19(1) CFREU is therefore especially relevant. 6 See Fargues/di Bartolomeo, Drowned Europe (Migration Policy Centre, European University Institute, 2015), p. 2, for an estimate of 18,043 deaths in the Mediterranean (including routes towards the Canary Islands), between 1998 and April 2015. This figure is based upon information gathered by the Fortress Europe NGO.

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as conditions on the ground have enabled migrant smuggling to take place, which has in turn led to a substantial loss of life in the Central Mediterranean. After the death of at least 359 persons off the island of Lampedusa on 3 October 2013, Italy responded through a large-scale search and rescue operation, known as Mare Nostrum. In October 2014, that was replaced by Operation Triton, coordinated by Frontex, focused on border control. Two further tragedies off Libya in April 2015, which together led to the loss of an estimated 1200 persons, were followed by a European Council announcement of increased resources for Operation Triton.7 The ongoing controversy over deaths at sea may well have further implications for Frontex operations, and for the legal framework applicable to it.

II. Legislative history The EU legislative developments leading to the Sea Borders Regulation began with a call by the European Council in June 2009 for ‘clear rules of engagement’ for Frontex operations at sea.8 That led the Commission to propose, and the Council to adopt, Decision 2010/252/EU on sea border surveillance in the context of Frontex operations.9 This set out binding rules in relation to interceptions, and ‘guidelines’ in relation to rescue. Decision 2010/252 was adopted using the comitology procedure, relying on Article 12(5) of the Schengen Borders Code. During the procedure, the Parliament did not object to the Decision, but it nevertheless challenged the legality of reliance upon Article 12(5) before the Court of Justice.10 That action succeeded, with the Court concluding that the rules concerning interception and rescue required political choices, and were not merely ‘additional measures’ within the meaning of Article 12(5).11 The ruling maintained the effects of Decision 2010/252 for a ‘reasonable time’ until the entry into force of new rules. The effect of the successful challenge to Decision 2010/252 was that any follow-up EU measure on interception and rescue had to be based upon Treaty legislative powers. The eventual Sea Borders Regulation was adopted under Article 77(2)(d) TFEU concerning ‘the gradual establishment of an integrated management system for external borders’. That had also been among the legal bases relied upon for amendments to the Frontex Regulation in 2011 (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1 MN 9). The content of the eventual Sea Borders Regulation differs from Decision 2010/252, however. One change is that the Commission’s proposal for the Regulation took into account the 2011 amendments to the Frontex Regulation, which expressly required Frontex to respect international obligations on search and rescue in its operations.12 (See above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 3.) That permitted the Regulation to be binding in relation to each of interception and rescue. The Commission proposal also sought to take into account the implications of Hirsi Jamaa for both types of scenario.13 During the legislative process, the Parliament also 7

Special meeting of the European Council, 23 April 2015: Statement, para 3(a). Brussels European Council 18/19 June 2009: Presidency Conclusions, para 37. 9 OJ 2010 L 111/20. For a discussion, see Moreno-Lax, ‘The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea’, International Journal of Marine and Coastal Law 25 (2010), p. 621–635. 10 See Chamon, ‘How the concept of essential elements of a legislative act continues to elude the Court: Parliament v. Council’, CMLR 50 (2013), p. 849–860. 11 ECJ, Parliament v. Council, C-355/10 EU:C:2012:516, para 78. 12 COM(2013) 197 final of 12 April 2013, p. 5. 13 Ibid., p. 4. 8

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proposed many amendments which came to be included in the compromise text agreed by it and the Council.

III. Textual analysis The statement of the Regulation’s scope in Article 1 suggests that it applies only to Member State operations. This is in line with the terms of Article 1 to the Frontex Regulation, which treats Member States as having primary responsibility for operations at the external borders (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 14). At the same time, the Regulation applies only to Member State actions conducted in the context of Frontex operations. It follows that the principles in the Regulation, and their enforcement through EU law, do not apply where Member States engage in sea operations autonomously. 10 The Sea Borders Regulation applies only to operations concerned with border surveillance. The Commission’s proposal indicated that, within the Regulation, this concept was ‘not limited to the detection of attempts at irregular border crossing’, but also included interception measures and ‘arrangements intended to address situations such as search and rescue that may arise during a sea operation’.14 In the light of the controversy over deaths at sea (this Article, MN 4), it is significant that even that more extensive conception of ‘border surveillance’ does not cover operations whose sole or primary purpose is to prevent loss of life at sea. Nor do those kinds of operation appear to fall within Frontex’s overall remit, set out in the Frontex Regulation (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 4). 9

Article 2 Definitions For the purposes of this Regulation the following definitions shall apply: (1) ‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004; (2) ‘sea operation’ means a joint operation, pilot project or rapid intervention carried out by Member States for the surveillance of their external sea borders under the coordination of the Agency; (3) ‘host Member State’ means a Member State in which a sea operation takes place or from which it is launched; (4) ‘participating Member State’ means a Member State which participates in a sea operation by providing technical equipment, border guards deployed as part of the European Border Guard Teams or other relevant staff but which is not a host Member State; (5) ‘participating unit’ means a maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation; (6) ‘International Coordination Centre’ means the coordination structure established within the host Member State for the coordination of a sea operation; (7) ‘National Coordination Centre’ means the national coordination centre established for the purposes of the European Border Surveillance System (Eurosur) in accordance with Regulation (EU) No 1052/2013; 14

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(8) ‘operational plan’ means the operational plan referred to in Article 3a and Article 8e of Regulation (EC) No 2007/2004; (9) ‘vessel’ means any type of water craft, including boats, dinghies, floating platforms, non-displacement craft and seaplanes, used or capable of being used at sea; (10) ‘stateless vessel’ means a vessel without nationality or assimilated to a vessel without nationality when the vessel has not been granted by any State the right to fly its flag or when it sails under the flags of two or more States, using them according to convenience; (11) ‘Protocol against the Smuggling of Migrants’ means the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime signed in Palermo, Italy in December 2000; (12) ‘place of safety’ means a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement; (13) ‘Rescue Coordination Centre’ means a unit responsible for promoting efficient organisation of search and rescue services and for coordinating the conduct of search and rescue operations within a search and rescue region as defined in the International Convention on Maritime Search and Rescue; (14) ‘contiguous zone’ means a zone contiguous to the territorial sea as defined in Article 33 of the United Nations Convention on the Law of the Sea, where formally proclaimed; (15) ‘coastal Member State’ means a Member State in whose territorial sea or contiguous zone an interception takes place. The definition of ‘sea operation’ in Article 2(2) confirms that the Regulation is only concerned with border surveillance operations. In theory, these could take the form of joint operations, pilot projects or rapid interventions under Articles 3 and 8a of the Frontex Regulation (see the chapter on that Regulation). Frontex practice to date suggests that its operations at sea are very likely to take the form of joint operations. (The rest of the chapter assumes that only joint operations would be used.) The definition of ‘host Member State’ in Article 2(3) firstly covers states ‘in which’ a sea operation takes place. That presumably refers to operations in the state’s territorial sea. The definition also covers the Member State ‘from which’ an operation is ‘launched’. The same words appear in the Frontex Regulation, having been added by amendments in 2011 (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1a, MN 6). The concept of a ‘participating Member State’ in Article 2(4) refers to Member States, other than the host state, which contribute to a sea operation, by providing technical equipment, border guards within a European Border Guard Team, or ‘other relevant staff’. The precise meaning of the last phrase is uncertain, as the Frontex Regulation does not cover Member State personnel other than border guards. In the context of the Sea Borders Regulation, it may refer to the crew of vessels and other technical support staff. The definition of a ‘participating unit’ in Article 2(5) covers Member State ‘maritime, land or aerial’ units that participate in sea operations. This confirms that it is Member State’ assets, rather than those of Frontex itself, which participate in Frontex co-ordinated operations. Ryan

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Article 2 distinguishes between three kinds of coordination centre. The ‘International Coordination Centre’ referred to in Article 2(6) is a structure established by the host state for a Frontex sea operation. The ‘National Coordination Centre’ referred to in Article 2(7) is the Member State structure for liaising with Frontex and other Member States within the Eurosur network (see above Ryan, Frontex Regulation (EC) No 2007/ 2004, Article 2, MN 6). The ‘Rescue Coordination Centre’ referred to in Article 2(13) concerns a state’s systems for the co-ordination of operations within a search and rescue area defined under the SAR Convention. The concept of ‘vessel’ in Article 2(9) is defined in a broad manner, to include ‘any type of water craft … used or capable of being used at sea.’ This definition presumably borrows from Article 3(d) of the Migrant Smuggling Protocol, according to which “vessel” shall mean any type of water craft … used or capable of being used as a means of transportation on water.’ The effect of Article 2(9) is to bring the interception of all such craft within the coverage of the Regulation. The concept of ‘stateless vessel’ in Article 2(10) covers (a) vessels that cannot claim the flag of any state, as they have not been registered by any state, and (b) vessels that claim the nationality of two or more States, using them according to convenience. The inclusion of the second category is in line with UNCLOS Article 92(2). The category of ‘stateless vessel’ is significant primarily because such vessels do not benefit from the protection of a flag state, if suspected of being engaged in the smuggling of migrants on the high seas (see below, Article 7 MN 13). A ‘place of safety’, as defined in Article 2(12), is the place where a rescue operation terminates. For that, it is necessary that the survivors’ safety of life is not threatened, that their basic human needs can be met, and that transportation can be arranged to their next destination. These elements are drawn from paragraph 6.12 of the IMO’s ‘Guidelines on the Treatment of Persons Rescued at Sea’, adopted in 2004.15 The determination that a location is a place of safety is to take fundamental rights ‘into account in accordance with the principle of non-refoulement. (On the concept of non-refoulement within the Regulation, see below, Article 4, MN 1 et seq.)16 The concept of a ‘coastal Member State’ covers any Member State in whose territorial sea or contiguous zone an interception takes place. It therefore covers the host state, other Member States participating in an operation, and other Member States who have authorised an interception under Articles 6 and 8 (see below). The Regulation does not contain a definition of the term ‘Member State’. It may be presumed from recitals 21–26 that these are the states bound by the Schengen acquis – i. e. the EU Member States other than Ireland and the UK, and the four associated states (Iceland, Liechtenstein, Norway and Switzerland). The Frontex Regulation does not treat Ireland or the UK as ‘Member States’, and it follows that they are to be classed as ‘third countries (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 11). By implication, the same is true of the Sea Borders Regulation. If these states were to participate in a Frontex sea operation, the application to them of the Regulation’s principles would therefore depend upon the Frontex Management Board decision authorising their participation (see Article 20 of the Frontex Regulation).

15 IMO Resolution MSC. 167(78), adopted on 20 May 2004, discussed by Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 142–143. On the link to the Regulation, see COM(2013) 197, p. 6. 16 The Parliament had proposed that survivors’ fundamental rights should be guaranteed in addition to safety of life: European Parliament report A7-0461/2013 (18.12.2013), Amendment 21.

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CHAPTER II GENERAL RULES Article 3 Safety at sea Measures taken for the purpose of a sea operation shall be conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of the participating units or that of third parties. Article 3 sets out a general principle of ‘safety at sea’ during measures taken within a 1 Frontex sea operation. This principle is stated to cover the following: persons rescued or intercepted; participating units, which presumably covers both vessels and persons on board; and, ‘third parties’, which presumably refers to persons, and may also apply to vessels. Article 3 is linked to international law obligations to ensure the safety of life at sea, set out in three instruments listed in recital 8 to the Regulation: the SOLAS Convention (see its Annex, Chapter V), the SAR Convention (the whole text) and UNCLOS (see its Article 98). Article 3 is not however limited to the safety of life, and may therefore extend to serious injury to persons, and to loss of, and significant damage to, vessels. The principle of safety set out in Article 3 is phrased in strict terms. The Commis- 2 sion proposal had provided that operational measures should not put safety ‘at risk’.17 The Parliament proposed the alternative formulation which appears in Article 3, that operational measures should ‘in all instances, ensure[]’ safety.18

Article 4 Protection of fundamental rights and the principle of non-refoulement 1. No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. 2. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country. The assessment of the general situation in a third country shall be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations and it may take into account the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds. That 17 18

COM(2013) 197 final, Article 3. European Parliament report A7-0461/2013 (18.12.2013), Amendment 22.

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assessment shall be part of the operational plan, shall be provided to the participating units and shall be updated as necessary. Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1. 3. During a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with paragraph 2, the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. For those purposes, further details shall be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States. Each participating unit shall include at least one person with basic first aid training. The report referred to in Article 13 shall, based on information that shall be provided by the host and participating Member States, include further details on cases of disembarkation in third countries and how each element of the procedures laid down in the first subparagraph of this paragraph was applied by the participating units to ensure compliance with the principle of non-refoulement. 4. Throughout a sea operation, the participating units shall address the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation. 5. Any exchange with third countries of personal data obtained during a sea operation for the purposes of this Regulation shall be strictly limited to what is absolutely necessary and shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council(16), Council Framework Decision 2008/ 977/JHA(17) and relevant national provisions on data protection. The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement. 6. Participating units shall, in the performance of their duties, fully respect human dignity. 7. This Article shall apply to all measures taken by Member States or the Agency in accordance with this Regulation. 8. Border guards and other staff participating in a sea operation shall be trained with regard to relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue in accordance with the second paragraph of Article 5 of Regulation (EC) No 2007/2004. (16) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). (17) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).

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Art. 4

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Part B V

Content I. II. III. IV. V.

Article 4(1): Non-refoulement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Country Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Processing individuals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 To whom does Article 4 apply?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Article 4(1): Non-refoulement Article 4(1) sets out a general requirement of respect for the principle of nonrefoulement. This principle applies to the disembarkation of persons from participating vessels in a given state. It also applies to other transfers, defined as when a person is ‘forced to enter, conducted to or otherwise handed over to the authorities of a country.’ The principle applies without differentiation to persons who have been intercepted and who have been rescued. Article 4(1) refers to possible disembarkation in, or transfer to, ‘a country’, without qualification. The same term appears in Article 2(1a) of the Frontex Regulation, in relation to the general principle of non-refoulement applicable to all Frontex activity (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 7). The ‘a country’ formulation arguably covers both Schengen states and third states (including Ireland and the UK: see above, Article 2 MN 11). The potential inclusion of EU and Schengen states is significant, because of the jurisprudence in relation to Dublin transfers showing that they may not be free of the types of fundamental rights breaches that ought to preclude expulsion or return.19 A possible objection to this interpretation is that in two other places Article 4 refers solely to ‘third countries’. These are: Article 4(2), in relation to the general assessment of a country (below, MN 9 et seq), and Article 4(3), in relation to the procedures to be followed by the participating unit (below, MN 12). While differences between the scope of Article 4(1) and other parts of Article 4 are not logically impossible, such an outcome would arguably be incoherent. A first general scenario covered by Article 4(1) is that of risks to a person in the state of proposed disembarkation or transfer. In that regard, Article 4(1) firstly refers to serious risks of treatment prohibited by two European fundamental rights norms – the death penalty (Article 2 ECHR and Article 2 ChFR) and torture and other inhuman or degrading treatment or punishment (Article 3 ECHR and Article 4 ChFR). Secondly, the list of in-state risks refers to ‘persecution’. This term may be read as covering all threats of serious fundamental rights violations, given that Article 9 of the Qualification Directive defines the term ‘act of persecution’ to mean acts which are ‘sufficiently serious by [their] nature or repetition as to constitute a severe violation of basic human rights’ or else are ‘an accumulation of various measures, including violations of human rights which [are] sufficiently severe as to affect an individual in a similar manner.’20 If ‘persecution’ does cover serious risks to other fundamental rights, the case-law of the ECtHR is of relevance. In particular, it has held that Article 2 ECHR prohibits 19 See ECtHR, Judgment of 21 January 2011 (GC), No. 30696/09, MSS v Belgium and Greece; ECJ, NS and ME, C-411/10 and C-493/10, EU:C:2011:865. 20 Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9).

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expulsion to a country where there is a real threat to life,21 and that expulsion is prohibited to places where there is a real risk of a ‘flagrant’ breach of a right other than Articles 2 and 3 ECHR.22 A fundamental rights-based reading of ‘persecution’ may also extend to the protection against expulsion in situations of armed conflict conferred by Article 15(c) of the Qualification Directive.23 Thirdly, the list of in-state risks includes those contemplated by the prohibition on refoulement in Article 33(1) of the Refugee Convention – i. e. a threat to ‘life or freedom’ on grounds of race, religion, nationality, membership of a particular social group or political opinion. One difference is that here the ground of ‘sexual orientation’ has been added to the list.24 If the conventional approach to interpretation of the Refugee Convention were followed, a threat to ‘life or freedom’ should anyway be equated with a risk of ‘being persecuted’.25 The second broad scenario covered by Article 4(1) is that of a serious risk of expulsion, removal or extradition from the state of disembarkation or transfer, ‘in contravention of the principle of non-refoulement’. The phrase ‘non-refoulement’ is probably intended to cover all the risks listed in Article 4(1) – i. e. including those deriving from fundamental rights standards and from refugee law. That all-encompassing interpretation is set out expressly in recital 12 to the Regulation, and follows from the separate reference to the principle of non-refoulement in the initial words of Article 4(1). It is significant that Article 4(1) applies to all operations covered by the Regulation, including interceptions and rescues which commence on the high seas. It is now established that international human rights treaties apply to a state’s actions outside its territory where there is control over a person, whereas there is uncertainty as to whether the Refugee Convention does so (see above Ryan, Frontex Regulation (EC) No 2007/ 2004, Article 2 MN 8). One effect of Article 4(1) is to make it clear that both have extraterritorial effect where a Member State acts within a Frontex operation at sea. One fundamental right which is not protected by Article 4(1), however, is protection against collective expulsion under Article 4 of Protocol 4 to the ECHR. As we saw above (Article 1, MN 3), in Hirsi Jamaa, the ECtHR held that this right applies to migrants intercepted or rescued at sea.26 Such persons have a right to individual consideration of an expulsion or transfer, separately from a claim to protection against refoulement. This essentially procedural right is not provided for within Article 4(1).

II. Country Assessments 9

Article 4(2) requires a general assessment, prior to disembarkation in a third state, of the fundamental rights risks referred to in Article 4(1). (Other kinds of transfer are not expressly covered.) Its first paragraph places the onus of assessment on the host Member State, when planning the operation. The emphasis on the planning stage is also evident in the second paragraph, which requires that the general assessment be included in the operational plan, and that it be updated as necessary. That in turn implies an indirect role for Frontex, as the agreement of its Executive Director is 21

See e. g. 1 March 2005, No. 39642/03, Headley v UK. See e. g. ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman v UK (Article 6 ECHR). 23 Article 3 ECHR may anyway apply in these situations: see ECtHR, Judgment of 28 June 2011, Nos. 8319/07 and 11449/07, Sufi and Elmi v UK, para 226. 24 The addition originated in European Parliament report A7-0461/2013 (18.12.2013), Amendment 23. 25 See Hathaway and Foster, The Law of Refugee Status, 2nd edition (Cambridge University Press, 2014), p. 184 n. 12. 26 See den Heijer, IJRL 25 (2013), p. 280–285 and Moreno-Lax, Human Rights Law Review 12 (2012), p. 586–589. 22

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required for the initial operational plan for joint operation, as well as for any amendments (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 3a MN 1). The first sentence of the second paragraph of Article 4(2) is concerned with the 10 information upon which the general assessment is based. There is an obligation to rely upon ‘a broad range of sources’, which may include information from other Member States, EU bodies, and international organisations. The assessment may also take into account forms of co-operation on migration and asylum carried out ‘in accordance with Union law and through Union funds’. The requirement to rely upon a broad range of information originated in a proposal by the Parliament.27 Its proposal would however have made it obligatory to rely upon Member State, EU and other international sources; it named the UNHCR in the list; and, it included relevant NGOs as a potential source. The silence of the Regulation in relation to NGOs is at odds with the Hirsi Jamaa ruling, in which the ECtHR recognised the relevance of ‘reports from independent international human rights protection associations’ to decisions on country conditions.28 The third paragraph of Article 4(2) provides that persons should not be disembarked, 11 in or otherwise transferred to, a third country, if the host Member State or other participating Member States ‘are aware or ought to be aware’ that that state ‘engages in’ practices covered by Article 4(1). This provision is in line with the finding in the Hirsi Jamaa ruling that the Italian authorities ‘knew or should have known’ about the treatment irregular migrants would face if returned to Libya.29 It goes further than the provision for the general assessment in two respects. Firstly, it is not limited to disembarkation, and applies to other kinds of transfer as well. Secondly, it places a duty upon all participating Member States, separate to the obligation on the host state in relation to the general assessment and operational plan.

III. Processing individuals The first paragraph of Article 4(3) places obligations upon participating units with 12 respect to the processing of persons who have been intercepted or rescued, if those persons are to be disembarked in, or otherwise transferred to, a third country. In such a situation, a participating unit must firstly endeavour to identify the persons concerned, and to assess their personal circumstances. Secondly, it must inform them of their planned destination in ‘a way that those persons understand or may reasonably be presumed to understand’. Thirdly, it must give them the opportunity to object to the proposed destination, on the grounds that their disembarkation would violate the principle of non-refoulement. There is an inconsistency in the first paragraph of Article 4(3) in the description of the place at issue. Information is to be given as to the ‘destination’, yet objection is contemplated only in relation to the ‘place of disembarkation’. If the place of disembarkation and the planned eventual destination differ, information presumably ought to be given in relation to both, as otherwise the right of objection to the place of disembarkation would be undermined. The possibility of an objection to the eventual destination ought also to be provided for, in order to ensure full respect for the principle of non-refoulement. The second paragraph of Article 4(3) requires that further details concerning on- 13 board procedures be provided in the operational plan. It also states that ‘when 27

European Parliament report A7-0461/2013 (18.12.2013), Amendment 24. Hirsi Jamaa, above, n. 4, para 118. 29 Ibid., para. 131. 28

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necessary’ provision should be made for the ‘availability’ of shore-based medical staff, interpreters, legal advisers and other ‘relevant experts’. The text is ambiguous as to whether the necessity and availability of these persons is to be assessed relative to the operation as a whole (a narrower interpretation), or with reference to the given individuals facing disembarkation or transfer (a broader interpretation). 14 It is not stated in Article 4(3), or elsewhere in the Regulation, what the consequences of an objection to the place of disembarkation or intended destination are to be. Who takes the initial decision to proceed or not, and on what basis? Can the disembarkation be suspended in an individual case, pending an administrative decision from an onshore authority? Are there to be on-shore legal remedies if a decision to proceed is taken? It is arguable that all these matters ought to be addressed in the operational plan. 15 The list in Article 4(4) of categories of person with ‘special needs’ that should be addressed is similar to that in Article 2(1a) of the Frontex Regulation (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 9). The main differences are the addition of references to ‘unaccompanied minors’ and to ‘disabled persons’. A related provision is Article 4(6), which requires participating units to ‘fully respect human dignity’, an obligation also set out for joint operations in Article 3b(4) of the Frontex Regulation. Both principles clearly apply during the conduct of an operation. They are also potentially relevant to decision-making concerning disembarkation or transfer, if a given location is especially unsafe or lacking in dignity for persons in a particular category. 16 Article 4(5) concerns the exchange of personal data with third countries. Its first paragraph states that such exchange is only to take place if ‘absolutely necessary’, and only if it is in compliance with EU and national law on the subject. The purposes for which a data exchange may validly take place are not stated, however. In particular, it is not certain whether such a transfer may occur solely for the purpose of confirming or establishing a person’s identity. The second paragraph of Article 4(5) provides that personal data relating to persons who have been intercepted or rescued should not be exchanged with a third country if there is a ‘serious risk’ of violation of the principle of non-refoulement. One may wonder why only ‘serious’ risks of refoulement are sufficient to preclude a data transfer. Moreover, who is to determine what is and is not a ‘serious’ risk in this context, and on what basis?

IV. To whom does Article 4 apply? Under Article 4(7), the various guarantees contained in Article 4 apply to ‘all measures’ taken by Member States and by Frontex under the Regulation. The possibility for the host Member State to breach Article 4 flows from their role in conducting sea operations. A more complex scenario would be a breach of Article 4 guarantees by a participating unit from another state. If that unit was acting under the host state’s command and control, in whole or in part, it is arguable that both states should be responsible for any legal violations. 18 A further question is whether Frontex can breach fundamental rights or nonrefoulement guarantees, given that it does not itself conduct operations. Frontex may be thought responsible for breaches of these guarantees for two reasons (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1 MN 22). One is that the operations it organises are identified as Frontex ones. The other is that it may have failed to ensure respect for fundamental rights or non-refoulement guarantees by the participating Member States. 17

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Art. 5

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Part B V

V. Training By virtue of the second sentence of Article 5 of the Frontex Regulation, Frontex has a 19 duty to ensure that certain personnel involved in its operations receive specified training. Article 4(8) of the Sea Borders Regulation gives greater detail to that training obligation in relation to ‘border guards’ and ‘other staff’ participating in sea operations. Persons in these categories are to receive training in relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue. While an express reference to search and rescue obligations does not appear in Article 5 of the Frontex Regulation, it presumably falls within the reference there to ‘relevant … international law’. In the context of sea operations, the term ‘other staff’ within this provision is uncertain. 20 In the case of Member State personnel, it could cover the crew of vessels, even if they were not involved in decision-making with respect to persons intercepted or rescued. It is also unclear whether the training obligation extends to any Frontex staff participating in sea operations.

CHAPTER III SPECIFIC RULES Article 5 Detection 1. Upon detection, the participating units shall approach a vessel suspected of carrying persons circumventing or intending to circumvent checks at border crossing points or of being engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further measures, shall survey that vessel at a prudent distance taking all due precautions. The participating units shall collect and immediately report information about that vessel to the International Coordination Centre, including, where possible, information about the situation of persons on board, in particular whether there is an imminent risk to their lives or whether there are persons in urgent need of medical assistance. The International Coordination Centre shall transmit that information to the National Coordination Centre of the host Member State. 2. Where a vessel is about to enter or it has entered the territorial sea or the contiguous zone of a Member State that is not participating in the sea operation, the participating units shall collect and report information about that vessel to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. 3. The participating units shall collect and report information about any vessel suspected of being engaged in illegal activities at sea, which are outside the scope of the sea operation, to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. Article 5 is concerned with the preliminary step of ‘detection’ within a sea operation. 1 Where a vessel is detected within the meaning of the Regulation, participating units are expected to observe its identity and nationality, to survey it at a distance, and to pass on relevant information to the International Co-ordination Centre. Ryan

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By virtue of Article 5(1), ‘detection’ refers exclusively to vessels suspected of being involved in irregular migration. Two possibilities are identified in this regard: ‘carrying persons circumventing or intending to circumvent checks at border crossing points’ or ‘being engaged in the smuggling of migrants by sea’. The reason for referring separately to ‘circumvention’ is presumably that, under the Migrant Smuggling Protocol, ‘smuggling’ requires both a material benefit to the smuggler (its Article 3(a)), and the involvement of a criminal organisation (its Article 4). 3 There is no express limitation in Article 5 upon the state whose border checks are suspected of being at risk of being circumvented, or towards which the suspected migrant smuggling might be taking place. There is no requirement that it be a Schengen state – i. e. ‘detection’ could in theory relate to vessels suspected of involvement in irregular migration towards a third country. If it is a Schengen state, it need not be a participant in the Frontex operation in question. 4 It is significant that Article 5(1) does not provide for detection solely because of a situation of distress affecting a vessel. Rather, if a vessel is detected for external border control reasons, the information to be passed on to the International Co-ordination Centre is to include ‘information about the situation of persons on board, in particular whether there is an imminent risk to their lives.’ Article 5(1) therefore confirms that the Frontex and Sea Borders Regulations do not concern operations that are exclusively or primarily concerned with search and rescue. 2

Article 6 Interception in the territorial sea 1. In the territorial sea of the host Member State or a neighbouring participating Member State, that State shall authorise the participating units to take one or more of the following measures where there are reasonable grounds to suspect that a vessel may be carrying persons intending to circumvent checks at border crossing points or is engaged in the smuggling of migrants by sea: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance, and making persons on board aware that they may not be authorised to cross the border; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage. 2. If evidence confirming that suspicion is found, that host Member State or neighbouring participating Member State may authorise the participating units to take one or more of the following measures: (a) seizing the vessel and apprehending persons on board; (b) ordering the vessel to alter its course outside of or towards a destination other than the territorial sea or the contiguous zone, including escorting the vessel or steaming nearby until it is confirmed that the vessel is keeping to that given course; (c) conducting the vessel or persons on board to the coastal Member State in accordance with the operational plan. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 256

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Part B V

The participating unit shall inform the host Member State, through the International Coordination Centre, whenever the master of the vessel requests that a diplomatic agent or a consular officer of the flag State be notified. 5. Where there are reasonable grounds to suspect that a stateless vessel is carrying persons intending to circumvent the checks at border crossing points or is engaged in the smuggling of migrants by sea, the host Member State or the neighbouring participating Member State in whose territorial sea that stateless vessel is intercepted shall authorise one or more of the measures laid down in paragraph 1 and may authorise one or more of the measures laid down in paragraph 2. The host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 6. Any operational activities in the territorial sea of a Member State that is not participating in the sea operation shall be conducted in accordance with the authorisation of that Member State. The host Member State shall instruct the participating unit through the International Coordination Centre based on the course of action authorised by that Member State. Content I. International law background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interception Measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Coastal State Authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 9

I. International law background Article 6 is concerned with the interception of vessels in the territorial sea of Member 1 States – i. e. the waters up to twelve nautical miles from the coast. The international law of the sea guarantees a right of innocent passage through the territorial sea to vessels flying a flag (UCNLOS, Article 17). A coastal state is permitted to take measures regulating the right of innocent passage, inter alia in order to prevent the breach of its immigration laws (UNCLOS, Article 21(1)(h)).30 For all interception measures under Article 6, the host state of the operation is to 2 issue instructions to the participating unit via the International Co-ordination Centre (Article 6(4), first paragraph).

II. Interception Measures Under the Regulation, interception measures are permitted in the territorial sea 3 where there are reasonable grounds to suspect that a vessel is carrying persons intending to circumvent border checks, or that it is involved in migrant smuggling. In the case of circumvention, it is not expressly stated that the border checks must be those of the state in question. That does though appear to follow from the terms of Article 21(1)(h) of UNCLOS. The Regulation provides for two stages in interception. In the first stage, under 4 Article 6(1) a participating unit may: – (a) request information and documentation on the vessel, its journey and the persons on board, and make the persons on board aware that they may not be authorised to enter the state in question; 30

See Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 120–126.

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– (b) stop, board and search the vessel and the persons on board, question the persons on board, and inform them that those directing the vessel may face penalties for facilitating the voyage. Where evidence is found confirming the suspicion of circumvention or migrant smuggling, the second stage is governed by Article 6(2). It permits the participating unit: – (a) to seize the vessel and ‘apprehend[]’ the persons on board – (b) to order the vessel to alter its course, away from the territorial sea and contiguous zone, and to escort the vessel, or to steam nearby, until it is confirmed that that course is being kept – (c) to conduct the vessel or persons to the host state or another participating state, ‘in accordance with the operational plan’. The Regulation does not expressly state that coercive force may be threatened or used to give effect to any of the measures listed in Article 6. Assuming that that is possible, any use of force will however be subject to the principle of safety set out in Article 3 (above). Where force is contemplated or used to give effect to an order to alter course away from the territorial sea, the Article 4 protection against non-refoulement (above) will not apply, as that presupposes that the persons in question are on board the participating unit. However, the fact that the territorial sea has been reached would in itself bring the persons on the vessel within the jurisdiction of the coastal state.31 They are therefore potentially protected against refoulement by virtue of ECHR principles, the Refugee Convention, and the corresponding provisions of the ChFR. That approach is confirmed by Article 3(1) to the 2013 Asylum Procedures Directive, which states that it applies inter alia to applications for international protection made in the ‘territorial waters’ of a state.32 The ECHR and ChFR prohibitions on collective expulsion would also potentially apply in such a situation. In such a scenario, if the legal guarantees against refoulement or collective expulsion are not to be undermined, the participating unit ought to allow the persons on board the intercepted vessel to indicate that they wish to claim protection. Where such an indication is given, then either the vessel should be escorted to a participating state, or the relevant persons on the intercepted vessel ought to be taken on board the participating unit, so as to trigger the application of Article 4. The interception measures provided for in Article 6 apply equally to vessels with a flag and to stateless vessels. In the former case, the master of the vessel concerned may request that the flag state’s diplomatic or consular services be notified (Article 6(4)). Article 6(5) provides expressly for the interception of stateless vessels.

III. Coastal State Authorisation 9

Article 6 interception measures are conditional upon authorisation by a coastal state. One scenario is that a vessel is intercepted within the territorial sea of the host state or of another participating state. In that case, the host or participating state is obliged 31 On the question whether the territorial sea is technically part of a state’s territory, see Pallis, IJRL 14 (2002), p. 342–344. 32 Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast), OJ 2013 L 180/60. No express reference to the territorial sea had appeared in the earlier Asylum Procedures Directive (Directive 2005/85/EC, OJ 2005 L 326/13). A reference to the ‘territorial waters’ was also included in Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast), OJ 2013 L 180/96, Article 3(1), having not appeared in the earlier Directive 2003/9/EC (OJ 2003 L 31/18).

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(‘shall’) to give authorisation to the participating unit to take the first-stage measures referred to in Article 6(1). In the case of the second-stage measures covered by Article 6(2), the host or participating state may give its authorisation. Article 6(6) concerns the possibility of interception measures in the territorial waters 10 of a Member State that is not participating in the operation. In that case, any operations are to be conducted in accordance with that state’s authorisation, which is presumably optional in all circumstances. While no reference is made within Article 6(6) to the interception measures provided for in Articles 6(1) and 6(2), for coherence, it appears likely that these are the measures that are permitted in such a situation. Within Article 6, the adjective ‘neighbouring’ is used to qualify the participating 11 states other than the host state who may give authorisation. This qualification is probably unnecessary, as it is likely that any participating state whose territorial waters will be affected by a given operation will be considered ‘neighbouring’. That impression is confirmed by the lack of provision within Article 6 for interception in the territorial waters of non-neighbouring, but participating, states.

Article 7 Interception on the high seas 1. On the high seas, where there are reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea, the participating units shall take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage. 2. If evidence confirming that suspicion is found, the participating units may take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) seizing the vessel and apprehending persons on board; (b) warning and ordering the vessel not to enter the territorial sea or the contiguous zone, and, where necessary, requesting the vessel to alter its course towards a destination other than the territorial sea or the contiguous zone; (c) conducting the vessel or persons on board to a third country or otherwise handing over the vessel or persons on board to the authorities of a third country; (d) conducting the vessel or persons on board to the host Member State or to a neighbouring participating Member State. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 5. Where the vessel is flying the flag or displays the marks of registry of the host Member State or of a participating Member State, that Member State may, after Ryan

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confirming the nationality of the vessel, authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 6. Where the vessel is flying the flag or displays the marks of registry of a Member State that is not participating in the sea operation or of a third country, the host Member State or a participating Member State, depending on whose participating unit has intercepted that vessel, shall notify the flag State, shall request confirmation of registry and, if nationality is confirmed, shall request that the flag State take action to suppress the use of its vessel for smuggling of migrants. If the flag State is unwilling or unable to do so either directly or with the assistance of the Member State to whom the participating unit belongs, that Member State shall request authorisation from the flag State to take any of the measures laid down in paragraphs 1 and 2. The host Member State or the participating Member State shall inform the International Coordination Centre of any communication with the flag State and of the intended actions or measures authorised by the flag State. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 7. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the same nationality as a participating unit, that participating unit shall verify the vessel’s right to fly its flag. To that end, it may approach the suspect vessel. If suspicion remains, it shall proceed to a further examination on board the vessel, which shall be carried out with all possible consideration. 8. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the nationality of the host Member State or a participating Member State, the participating unit shall verify the vessel’s right to fly its flag. 9. Where, in the cases referred to in paragraph 7 or 8, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 10. Pending or in the absence of authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall be taken without the express authorisation of the flag State, except those necessary to relieve imminent danger to the lives of persons or those measures which derive from relevant bilateral or multilateral agreements. 11. Where there are reasonable grounds to suspect that a stateless vessel is engaged in the smuggling of migrants by sea, the participating unit may board and search the vessel with a view to verifying its statelessness. If evidence confirming that suspicion is found, the participating unit shall inform the host Member State which may take, directly or with the assistance of the Member State to whom the participating unit belongs, further appropriate measures as laid down in paragraphs 1 and 2 in accordance with national and international law. 12. A Member State whose participating unit has taken any measure in accordance with paragraph 1 shall promptly inform the flag State of the outcome of that measure. 13. The national official representing the host Member State or a participating Member State at the International Coordination Centre shall be responsible for facilitating communications with the relevant authorities of that Member State in

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seeking authorisation to verify the right of a vessel to fly its flag or to take any of the measures laid down in paragraphs 1 and 2. 14. Where the grounds to suspect that a vessel is engaged in the smuggling of migrants on the high seas prove to be unfounded or where the participating unit does not have jurisdiction to act, but there remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination Centre shall communicate information about that vessel to the National Coordination Centre of the Member States towards which it is directed. Content I. International law background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interception measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Flag state authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 9

I. International law background Article 7 is concerned with the legal position where interception measures are 1 contemplated on the high seas – i. e. outside of any state’s territorial waters (covered by Article 6) or contiguous zone (covered by Article 8). On the high seas, the core international law principle is the freedom of navigation, in accordance with Article 87 UNCLOS. Correspondingly, the presumption is that the flag state has exclusive jurisdiction over a vessel flying its flag (Article 92 UNCLOS). Article 110 UNCLOS limits the ‘right of visit’ by other states’ vessels to cases of reasonable suspicion of the following: – engagement in piracy or the slave trade – engagement in unauthorised broadcasting (provided the intercepting vessel’s state has jurisdiction); – that the ship is without nationality; or, – that the ship is concealing the fact that it is of the same nationality as the intercepting vessel. In addition, a state may consent to another state’s vessel’s right of visit to vessels flying its flag, either by treaty, or in an ad hoc manner.33 No reference is made in Article 110 UNCLOS to a right of visit where it is suspected 2 that a vessel is involved in irregular migration.34 Where a vessel is suspected of involvement in migrant smuggling, an international law basis for interception measures is instead provided by the Migrant Smuggling Protocol. In such a situation, one contracting state’s vessel may intercept a vessel with the nationality of another contracting state, if authorised to do so by the flag state (Article 8(2) of the Protocol).35 There is disagreement among scholars as to whether international law permits 3 enforcement measures – beyond a right to visit – in relation to stateless vessels, as these measures are not expressly provided for in Article 110 UNCLOS. Some writers treat the case of stateless vessels as a lacuna which international law has not fully 33 The possibility of permission by treaty is provided for by Article 110 UNCLOS. In relation to ad hoc consent, see Papastavridis (2014), p. 63–64, who relies upon the principle in Article 20 of the International Law Commission’s Draft Articles on State Responsibility (2001), that ‘consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State.’ 34 See Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 216–217. 35 See Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 217–220.

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addressed.36 Others take the view that enforcement measures may be taken by a given state where there is a specific ‘jurisdictional nexus or permissive rule’.37 The latter view appears preferable, to avoid the anomaly of stateless vessels being exempt from a legal regime – such as the Migrant Smuggling Protocol – to which most of the world’s states are subject. 4 The complex international law background explains why Articles 7(1) and 7(2) of the Regulation provide that interception measures on the high seas must be ‘in accordance with’ the Migrant Smuggling Protocol, and ‘where relevant, national and international law’. It also explains why Article 7 of the Regulation provides for interception solely in cases of suspected smuggling of migrants by sea, and not also (as in Article 6) in other cases of suspicion of an intention to contravene borders controls. If contravention alone is suspected, Article 7(14) provides for the vessel to be monitored, and for information to be passed on to the Schengen state towards which it is directed (which need not be a state involved in the operation).

II. Interception measures Article 7(1) applies where there are ‘reasonable grounds to suspect’ that a vessel is engaged in smuggling of migrants by sea. This threshold for intervention is based upon a similar phrasing in Article 8(1) of the Migrant Smuggling Protocol. When that requirement is met, Article 7(1) permits a similar set of interception measures to those set out in Article 6(1) (above, Article 6 MN 4): (a) requests for information and documentation on the vessel, its journey and the persons on board, and (b) stopping, boarding and searching the vessel and the persons on board, questioning the persons on board, and informing them that those directing the vessel may face penalties for facilitating the voyage. Boarding and searching are also provided for in Article 8(2) of the Migrant Smuggling Protocol, albeit in more general terms. As under Article 6(4), the host state of the operation is to issue instructions to the participating unit via the International Coordination Centre (Article 7(4)). 6 If evidence confirming a suspicion of smuggling is found, Article 7(2) sets out a list of further interception measures that may be taken, which is similar to that in Article 6(2), above. The participating unit may do the following: – (a) seize the vessel and ‘apprehend[]’ the persons on board. – (b) warn and order the vessel not to enter the territorial sea or contiguous zone, and ‘where necessary’ request it to alter its course towards another destination – (c) conduct the vessel or persons on board to a third country, or otherwise transfer them to the authorities of a third country – (d) conduct the vessel or persons on board to the host Member State or another participating Member State.38 In this second stage of interception, Article 7(2) provides a more detailed list than in Article 8(2) of the Migrant Smuggling Protocol, which refers simply to the taking of ‘appropriate measures’ with respect to a vessel and persons on board. 7 Article 7 does not expressly state that coercive force may be used in support of interception measures. If force is used, the principle of safety in Article 3 (above) is relevant. 5

36 See Papastavridis (2014), p. 264–267 i Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 219. 37 See Guilfoyle, Shipping Interdiction and the Law of the Sea, p. 16–18, whose position is endorsed by Crawford, Brownlie’s Principles of Public International Law, 8th edition (OUP, 2012), p. 308. 38 The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 11.

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A significant aspect of these provisions is the power given by Article 7(2)(c) to 8 conduct persons or a vessel to a third country. If the persons to be conducted elsewhere are taken on board a participating unit, the non-refoulement guarantees in Article 4 (above) will be applicable, as will be ECHR and ChFR guarantees against collective expulsion. If the vessel is to be conducted elsewhere, however, then the position is regulated solely by international law. It is probable that ECHR principles will nevertheless apply, as is shown by the drug smuggling interception case of Medvedyev, decided in 2010.39 That would ensure protection both against refoulement and against collective expulsion.

III. Flag state authorisation Where a vessel intercepted on the high seas is flying the flag or displaying the marks of registry of the host Member State or another participating Member State, Article 7(5) provides that, after confirming the vessel’s nationality, that state may authorise one or more of the interception measures listed in Articles 7(1) and (2). Where the vessel is flying the flag or displaying the marks of registry of another state – i. e., a non-participant Schengen state or a third country – Article 7(6) provides that the state of the participating unit (not the host state) ‘shall’ request the presumed state of nationality to confirm the vessel’s nationality. Where its nationality is confirmed, the participating unit’s state ‘shall’ request the flag state to take action to suppress the use of the vessel for migrant smuggling. Where that request does not lead to action by the flag state, it is further provided that the participating unit’s state ‘shall’ request the flag state’s authorisation to take the interception measures provided for in Articles 7(1) and (2). The provision in Article 7(6) for requests to the flag state is broadly in line with the terms of the Migrant Smuggling Protocol. Its Article 8(1) provides that flag states ‘may request the assistance of other States Parties in suppressing the use of [a] vessel for that purpose’. Moreover, its Article 8(2) specifically permits a request by another state to the flag state for authorisation to take interception measures. Another scenario is that a vessel is flying a foreign flag, or is refusing to display its flag, but there are ‘reasonable grounds’ to suspect that it has the nationality either of the participating unit (Article 7(7)), or of the host state or another participating state (Article 7(8)). In such a case, the participating unit is to verify the vessel’s right to fly its flag. If the suspicions as to nationality prove well-founded, the flag state may authorise one or more of the interception measures listed in Articles 7(1) and (2) (Article 7(9)). Article 7 is silent as to the legal position where the flag state is not a party to the Migrant Smuggling Protocol, but authorises interception measures.40 In such a case, it is arguable that the ad hoc consent of the flag state to the interception makes it lawful in international law (see above, this Article, MN 1). It is possible to read Article 7(1) and Article 7(2) as requiring authorisation under the Protocol, which would preclude measures against vessels flying the flag of a non-party state, even with its consent. An argument against that conclusion is that such an interception would anyway be ‘in accordance with’ the principles of the Protocol. Alternatively, this might be treated as a case in which only general international law principles are ‘relevant’ under Article 7(1) and Article 7(2). 39 ECtHR, Judgment of 29 March 2010 (GC), No. 3394/03, Medvedyev v France. For a discussion in the context of border control operations, see Moreno-Lax, IJRL 23 (2011), p. 202–203. 40 At the time of writing, there are 141 parties to the MSP, including the EU. Of the 53 UN member states that are not parties, two are Mediterranean states: Israel and Morocco.

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If a vessel is a stateless, freedom of navigation on the high seas is not protected by any state. As we saw above (this Article, MN 1 and 3), there is a right of visit in such circumstances under Article 110 UNCLOS, but room for disagreement concerning the legal basis for further enforcement measures. Article 8(7) of the Migrant Smuggling Protocol provides that ‘appropriate measures’ may be taken against stateless vessels, though without specifying what they may be. Article 7(11) of the Regulation is to be seen as a development of the Protocol on this point. It provides that, where there are ‘reasonable grounds’ for suspecting that the vessel is stateless, a participating unit may board and search the vessel in order to verify its nationality. If evidence confirming the suspicion of statelessness is found, the host state of the operation may take or authorise the interception measures provided for in Articles 7(1) and (2).

Article 8 Interception in the contiguous zone 1. In the contiguous zone of the host Member State or of a neighbouring participating Member State, the measures laid down in paragraphs 1 and 2 of Article 6 shall be taken in accordance with those paragraphs and with paragraphs 3 and 4 thereof. Any authorisation referred to in Article 6(1) and (2) may only be given for measures that are necessary to prevent the infringement of relevant laws and regulations within that Member State’s territory or territorial sea. 2. The measures laid down in Article 6(1) and (2) shall not be taken in the contiguous zone of a Member State that is not participating in the sea operation without the authorisation of that Member State. The International Coordination Centre shall be informed of any communication with that Member State and of the subsequent course of action authorised by that Member State. If that Member State does not give its authorisation and where there are reasonable grounds to suspect that the vessel is carrying persons intending to reach the border of a Member State, Article 7(14) shall apply. 3. Where a stateless vessel is transiting the contiguous zone, Article 7(11) shall apply. Article 8 is concerned with interception in a Member State’s contiguous zone. The contiguous zone extends up to 24 nautical miles from the coast (Article 33(2) UNCLOS). Within it, a state may exercise such control as is necessary to prevent or punish the infringement, in its territory and territorial sea, of its ‘customs, fiscal, immigration or sanitary laws and regulations’(Article 33(1) UNCLOS).41 2 Article 8(1) extends the provision for interception measures within the territorial sea (above, Article 6, MN 4 and 5) to the contiguous zone of the host state and of other participating states.42 It refers both to circumvention of border control and migrant smuggling. It does however not go as far as UNCLOS, as a Member State may authorise interception measures only if necessary to prevent infringement of its laws and regulations, and not also for the punishment of infringements. 3 The possibility to authorise interception measures under Article 8(1) is limited to ‘relevant’ laws and regulations. In the context of the Regulation, that term probably refers solely to laws and regulations concerned with immigration and border control. If 1

41

For a discussion, see Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 126–

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so, it would not be permissible for a Member State to use other state’s assets to prevent the infringement of its customs, fiscal or sanitary laws. Under Article 8(1), the ‘relevant’ laws must moreover be those of that Member State – i. e. it is not possible to authorise interception in the contiguous zone to prevent the breach of another state’s laws. Article 8 of the Regulation is silent as to whether coercive measures may be taken to 4 give effect to the measures provided for. If such measures are used, the principle of safety in Article 3 (above) is relevant. Where coercive measures are taken against a vessel, the legal guarantees concerning refoulement and collective expulsion are those that apply on the high seas (see above, Article 7, MN 7). Unlike in the case of Article 6 (above, MN 7), the EU asylum acquis does not apply, as the situation is not within the territorial waters. Article 8(2) permits interception measures in the contiguous zone of a non-partici- 5 pating Member State, if it gives authorisation. The permitted interception measures are expressly stated to be those in Articles 6(1) and (2). Where a non-participating Member State does not give its authorisation for interception measures, the monitoring provisions in Article 7 (above, MN 4) apply. Where suspected stateless vessels are detected in a Member State’s contiguous zone, 6 Article 8(3) provides for the application of Article 7(11) (see Article 7 above, MN 13). Accordingly, these vessels may be boarded and searched to verify their lack of nationality, and, if that is confirmed, the host state may decide on ‘appropriate measures’.

Article 9 Search and rescue situations 1. Member States shall observe their obligation to render assistance to any vessel or person in distress at sea and, during a sea operation, they shall ensure that their participating units comply with that obligation, in accordance with international law and respect for fundamental rights. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found. 2. For the purpose of dealing with search and rescue situations that may occur during a sea operation, the operational plan shall contain, in accordance with relevant international law, including that on search and rescue, at least the following provisions: (a) When, in the course of a sea operation, the participating units have reason to believe that they are facing a phase of uncertainty, alert or distress as regards a vessel or any person on board, they shall promptly transmit all available information to the Rescue Coordination Centre responsible for the search and rescue region in which the situation occurs and they shall place themselves at the disposal of that Rescue Coordination Centre. (b) The participating units shall inform the International Coordination Centre as soon as possible of any contact with the Rescue Coordination Centre and of the course of action taken by them. (c) A vessel or the persons on board shall be considered to be in a phase of uncertainty in particular: (i) when a person has been reported as missing or a vessel is overdue; or (ii) when a person or a vessel has failed to make an expected position or safety report. (d) A vessel or the persons on board shall be considered to be in a phase of alert in particular: Ryan

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(i) when, following a phase of uncertainty, attempts to establish contact with a person or a vessel have failed and inquiries addressed to other appropriate sources have been unsuccessful; or (ii) when information has been received indicating that the operating efficiency of a vessel is impaired, but not to the extent that a distress situation is likely. A vessel or the persons on board shall be considered to be in a phase of distress in particular: (i) when positive information is received that a person or a vessel is in danger and in need of immediate assistance; or (ii) when, following a phase of alert, further unsuccessful attempts to establish contact with a person or a vessel and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or (iii) when information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely. Participating units shall, for the purpose of considering whether the vessel is in a phase of uncertainty, alert or distress, take into account and transmit all relevant information and observations to the responsible Rescue Coordination Centre including on: (i) the existence of a request for assistance, although such a request shall not be the sole factor for determining the existence of a distress situation; (ii) the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination; (iii) the number of persons on board in relation to the type and condition of the vessel; (iv) the availability of necessary supplies such as fuel, water and food to reach a shore; (v) the presence of qu