Inhoudsopgave
Problem 1 2
Problem 2 20
Problem 3 50
Problem 4 66
Problem 5 84
Problem 6 104
Problem 7 122
Problem 8 159
Hoorcollege 179
Step-by-step plans 255
Samenvatting European Law: JHA
1
,Problem 1 - What’s going on with the Schengen Area?
1. What is the Schengen-area?
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
3. Is it possible for Schengen Member States to conduct checks within their territory?
4. What are the rules regarding the reintroduction of border controls/closing the borders?
‘How The Schengen Area Was Created’, (BBC News, 8 September 2015) How the Schengen area was
created - BBC News
Idea of Schengen: “the elimination of borders within the European Union signals recognition of the
fact that all the citizens of the participating states belong to the same space and share the same
identity”.
⇒ Started on the border between the three countries: Germany, Luxembourg and France in 1995
⇒ EU heeft nu 29 lidstaten
Elspeth Guild et al., ‘What's Happening to the Schengen Borders?’ [2015] 86 Centre for European
Policy Studies (CEPS) (Leerdoel 1, 2 & 4)
Map of the Schengen area (2013)
This map indicates the 25 EU member states and the
four non-EU states that are signatories to the
Schengen agreement plus the six EU states outside
Schengen (Bulgaria, Croatia, Cyprus, Romania and
the UK).
It operated as a separate system outside EU law until
1999. The abolition of border controls on the
movement of persons across the Schengen Area
actually took place on 20 March 1995.
Between 1995 and 1999, all member states joined
the system except Ireland and the UK. Non-EU
member states Iceland, Norway, Liechtenstein and
Switzerland also joined the system. By the end of
2007, all the 2004 member states had joined the Schengen system of no border controls on
persons with the sole exception of Cyprus, owing to its problems in controlling its borders.
The Schengen Borders Code (SBC) of 2006 codified most of the relevant Schengen rules:
a) Controls at external borders;
b) Removal of controls at internal Schengen borders (and their temporary re-introduction);
c) Police controls of the zone behind the internal border.
In 2011, the European Commission proposed a series of important amendments to the Schengen
Borders Code, that came into force in 2013. The amendments set out the circumstances, time limits
and grounds under which participating Schengen states are entitled to (re)introduce intra-state
border controls on persons.
The Commission is charged with ensuring that there is an evaluation of the reasons and application
of the emergency measures.
Legislation for border controls
External borders (staat niet in het artikel van Elspeth Guild et al. zelf)
2
,- Art. 6 SBC: in paragraph 1: all entry conditions.
Art. 6(1)(a): valid travel document
Art. 6(1)(b): valid visa
Art. 6(1)(c): justified purpose and conditions of the intended stay
Art. 6(1)(d): no alert issued in the SIS.
Art. 6(1)(e): not a threat to public policy, internal security, public health or the international
relations of any of the MS
o In art. 6(5) SBC are the exceptions laid down for the conditions in paragraph 1.
o Art. 14 SBC: a Third Country National who does not fulfill the entry conditions of art.
6(1) SBC and does not belong to the categories of persons in art. 6(5) SBC shall be
refused entry.
Art. 9 SBC: relaxation of border checks
Art. 10 SBC: separate lanes and information on signs
Art. 11 SBC: stamping of the travel documents.
Art. 12 SBC: presumption as regards fulfilment of conditions of duration of
short stay
Art. 13 SBC: border surveillance
- Art. 7 SBC: conduct of border checks.
- Art. 8 SBC: control of external borders. EU citizens and third-national countries are being
distinguished in paragraph 2 and 3.
a. Art. 8(2) SBC: persons enjoying the EU right of free movement (art. 2(5) SBC) are subject to a
minimum check at the borders.
i. Art.8(2a) SBC: is the exception to the minimum check in art. 8(2) SBC targeted checks are
allowed if it too busy to control everyone
b. Art. 8(3) SBC: TCNs are subject to a thorough check
⇒ EXTRA:
An exception of par. 2a and 2b: in case the checks have an impact on the proportion. It can
only be to check their identity. Targeted checks are not usually allowed unless it does not
exceed what is necessary.
It is important to note, that over the past year, considering the increasing attention for
terrorist attacks, the measures in paragraph 2 have increased.
When a person gets a VISA, he is obliged to enter the Schengen zone through the country he
got the VISA from. Same goes for leaving the Schengen zone.
The legal provisions on reintroducing controls at internal Schengen borders
Internal borders (internal borders)
- Art. 22 SBC: internal borders may be crossed without border check.
- Art. 23 SBC: exercise of police powers doesn’t have an effect equivalent to border checks.
Do not have border control as an objective.
Are based on general police information to combat cross-border crime.
Are executed in a manner clearly distinct from systematic checks on external borders.
Are carried out on the basis of spot-checks.
Art. 22 SBC: internal borders may be crossed without a border check on persons —> abolition of
internal border controls – linked with the Adil and Bundesrepublik Deutschland v. Touring Tour cases.
a. Adil case: national police authorities may exercise their powers, including in border areas (as
long as not equivalent to border checks)
3
, b. Joined cases C-412/17 and C-474/17 Bundesrepublik Deutschland v. Touring Tours: German
legislation requiring transport operators of cross-border services to check the passports and
residence permits of passengers before entering the territory of Germany: equivalent to border
checks!
Art. 23(a) SBC is an exception to the principle in art. 22 SBC on the abolition of internal
border controls: it allows police checks within the internal border areas as long as the
exercise of these police powers do not have an effect equivalent to border checks
Art. 23(a) SBC clarifies the conditions of a police measure; Art. 23 (b) & (c) SBC give further
exceptions where border checks are allowed:
o In the case of security checks on persons carried out at ports and airports (b)
o The possibility for a MS to provide by law for an obligation to hold or carry papers
and documents (c).
Article 25 SBC
⇒ provides the general framework for the temporary reintroduction of border control at internal
borders (those between Schengen participating states).
Requirements:
1. There is a “serious threat to public policy or internal security” in a member state.
2. The measure is ‘a last resort’ and that the reintroduction of border controls is temporary in
nature.
a. In doing so, the state must take into account the following:
i. the likely impact of any threats to its public policy or internal security including following
terrorist incidents or threats including those posed by organised crime; and
ii. the likely impacts of the measure on free movement of persons within the Schengen area.
: Where there is such an emergency, the 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 extension exceeds 30 days. But the scope and duration of the
temporary reintroduction of border controls must not exceed what is strictly necessary to respond
to the serious threat. Furthermore, border controls can only be reintroduced as a last resort and in
accordance with the procedure set out in Articles 24, 25 and 26. If the threat persists beyond the
period provided, controls can be renewed in 30-day periods, up to a maximum of six months, or in
exceptional circumstances set out in Article 26, up to two years.
Article 25a SBC
⇒ sets out the procedure for the temporary introduction of border controls.
Steps:
1. The state must inform the other Schengen states, the Commission, the European Parliament and
the Council Art. 27 SBC
for ‘normal’ foreseen threats the latest four weeks before the introduction of the border
controls (art. 25a (4) SBC).
A shorter period is permitted where the circumstances become known less than four weeks
before the planned reintroduction of controls.
The notification must include four elements: Art. 27 SCB
o the reasons for the proposed introduction, including all relevant data detailing the
events that constitute a serious threat to its public policy or internal security;
o the scope of the proposed reintroduction specifying at which parts of the internal
borders border controls will be introduced;
o the names of the authorised crossing-points; and
o the date and duration of the planned reintroduction.
2. The Commission is entitled to request further information.
4
Problem 1 2
Problem 2 20
Problem 3 50
Problem 4 66
Problem 5 84
Problem 6 104
Problem 7 122
Problem 8 159
Hoorcollege 179
Step-by-step plans 255
Samenvatting European Law: JHA
1
,Problem 1 - What’s going on with the Schengen Area?
1. What is the Schengen-area?
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
3. Is it possible for Schengen Member States to conduct checks within their territory?
4. What are the rules regarding the reintroduction of border controls/closing the borders?
‘How The Schengen Area Was Created’, (BBC News, 8 September 2015) How the Schengen area was
created - BBC News
Idea of Schengen: “the elimination of borders within the European Union signals recognition of the
fact that all the citizens of the participating states belong to the same space and share the same
identity”.
⇒ Started on the border between the three countries: Germany, Luxembourg and France in 1995
⇒ EU heeft nu 29 lidstaten
Elspeth Guild et al., ‘What's Happening to the Schengen Borders?’ [2015] 86 Centre for European
Policy Studies (CEPS) (Leerdoel 1, 2 & 4)
Map of the Schengen area (2013)
This map indicates the 25 EU member states and the
four non-EU states that are signatories to the
Schengen agreement plus the six EU states outside
Schengen (Bulgaria, Croatia, Cyprus, Romania and
the UK).
It operated as a separate system outside EU law until
1999. The abolition of border controls on the
movement of persons across the Schengen Area
actually took place on 20 March 1995.
Between 1995 and 1999, all member states joined
the system except Ireland and the UK. Non-EU
member states Iceland, Norway, Liechtenstein and
Switzerland also joined the system. By the end of
2007, all the 2004 member states had joined the Schengen system of no border controls on
persons with the sole exception of Cyprus, owing to its problems in controlling its borders.
The Schengen Borders Code (SBC) of 2006 codified most of the relevant Schengen rules:
a) Controls at external borders;
b) Removal of controls at internal Schengen borders (and their temporary re-introduction);
c) Police controls of the zone behind the internal border.
In 2011, the European Commission proposed a series of important amendments to the Schengen
Borders Code, that came into force in 2013. The amendments set out the circumstances, time limits
and grounds under which participating Schengen states are entitled to (re)introduce intra-state
border controls on persons.
The Commission is charged with ensuring that there is an evaluation of the reasons and application
of the emergency measures.
Legislation for border controls
External borders (staat niet in het artikel van Elspeth Guild et al. zelf)
2
,- Art. 6 SBC: in paragraph 1: all entry conditions.
Art. 6(1)(a): valid travel document
Art. 6(1)(b): valid visa
Art. 6(1)(c): justified purpose and conditions of the intended stay
Art. 6(1)(d): no alert issued in the SIS.
Art. 6(1)(e): not a threat to public policy, internal security, public health or the international
relations of any of the MS
o In art. 6(5) SBC are the exceptions laid down for the conditions in paragraph 1.
o Art. 14 SBC: a Third Country National who does not fulfill the entry conditions of art.
6(1) SBC and does not belong to the categories of persons in art. 6(5) SBC shall be
refused entry.
Art. 9 SBC: relaxation of border checks
Art. 10 SBC: separate lanes and information on signs
Art. 11 SBC: stamping of the travel documents.
Art. 12 SBC: presumption as regards fulfilment of conditions of duration of
short stay
Art. 13 SBC: border surveillance
- Art. 7 SBC: conduct of border checks.
- Art. 8 SBC: control of external borders. EU citizens and third-national countries are being
distinguished in paragraph 2 and 3.
a. Art. 8(2) SBC: persons enjoying the EU right of free movement (art. 2(5) SBC) are subject to a
minimum check at the borders.
i. Art.8(2a) SBC: is the exception to the minimum check in art. 8(2) SBC targeted checks are
allowed if it too busy to control everyone
b. Art. 8(3) SBC: TCNs are subject to a thorough check
⇒ EXTRA:
An exception of par. 2a and 2b: in case the checks have an impact on the proportion. It can
only be to check their identity. Targeted checks are not usually allowed unless it does not
exceed what is necessary.
It is important to note, that over the past year, considering the increasing attention for
terrorist attacks, the measures in paragraph 2 have increased.
When a person gets a VISA, he is obliged to enter the Schengen zone through the country he
got the VISA from. Same goes for leaving the Schengen zone.
The legal provisions on reintroducing controls at internal Schengen borders
Internal borders (internal borders)
- Art. 22 SBC: internal borders may be crossed without border check.
- Art. 23 SBC: exercise of police powers doesn’t have an effect equivalent to border checks.
Do not have border control as an objective.
Are based on general police information to combat cross-border crime.
Are executed in a manner clearly distinct from systematic checks on external borders.
Are carried out on the basis of spot-checks.
Art. 22 SBC: internal borders may be crossed without a border check on persons —> abolition of
internal border controls – linked with the Adil and Bundesrepublik Deutschland v. Touring Tour cases.
a. Adil case: national police authorities may exercise their powers, including in border areas (as
long as not equivalent to border checks)
3
, b. Joined cases C-412/17 and C-474/17 Bundesrepublik Deutschland v. Touring Tours: German
legislation requiring transport operators of cross-border services to check the passports and
residence permits of passengers before entering the territory of Germany: equivalent to border
checks!
Art. 23(a) SBC is an exception to the principle in art. 22 SBC on the abolition of internal
border controls: it allows police checks within the internal border areas as long as the
exercise of these police powers do not have an effect equivalent to border checks
Art. 23(a) SBC clarifies the conditions of a police measure; Art. 23 (b) & (c) SBC give further
exceptions where border checks are allowed:
o In the case of security checks on persons carried out at ports and airports (b)
o The possibility for a MS to provide by law for an obligation to hold or carry papers
and documents (c).
Article 25 SBC
⇒ provides the general framework for the temporary reintroduction of border control at internal
borders (those between Schengen participating states).
Requirements:
1. There is a “serious threat to public policy or internal security” in a member state.
2. The measure is ‘a last resort’ and that the reintroduction of border controls is temporary in
nature.
a. In doing so, the state must take into account the following:
i. the likely impact of any threats to its public policy or internal security including following
terrorist incidents or threats including those posed by organised crime; and
ii. the likely impacts of the measure on free movement of persons within the Schengen area.
: Where there is such an emergency, the 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 extension exceeds 30 days. But the scope and duration of the
temporary reintroduction of border controls must not exceed what is strictly necessary to respond
to the serious threat. Furthermore, border controls can only be reintroduced as a last resort and in
accordance with the procedure set out in Articles 24, 25 and 26. If the threat persists beyond the
period provided, controls can be renewed in 30-day periods, up to a maximum of six months, or in
exceptional circumstances set out in Article 26, up to two years.
Article 25a SBC
⇒ sets out the procedure for the temporary introduction of border controls.
Steps:
1. The state must inform the other Schengen states, the Commission, the European Parliament and
the Council Art. 27 SBC
for ‘normal’ foreseen threats the latest four weeks before the introduction of the border
controls (art. 25a (4) SBC).
A shorter period is permitted where the circumstances become known less than four weeks
before the planned reintroduction of controls.
The notification must include four elements: Art. 27 SCB
o the reasons for the proposed introduction, including all relevant data detailing the
events that constitute a serious threat to its public policy or internal security;
o the scope of the proposed reintroduction specifying at which parts of the internal
borders border controls will be introduced;
o the names of the authorised crossing-points; and
o the date and duration of the planned reintroduction.
2. The Commission is entitled to request further information.
4
