Let’s not forget about Schengen

12 Friday Mar 2021

in Borders, Code Frontières Schengen, Free movement, New Pact on Migration and Asylum, Schengen

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Governance, New Pact on Migration and Asylum, Schengen, schengen border code

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By Jorrit J. Rijpma, Professor of European Law at the Europa Institute of Leiden Law School, Leiden University. This blog builds on an earlier note of the Meijers Committee of which the author is a member.

In 2011, the closure of the French-Italian border by France in response to the arrival of Tunisian migrants who had been given an Italian temporary residence, was but a glimpse of things to come. In 2015, the ‘refugee crisis’ led one Member State after the other to reinstate checks at its internal border. Many of these checks have remained in place until this very day, despite clear time limits laid down in secondary law, with Member States invoking both the situation at the external borders and so-called ‘secondary movements’ of asylum applicants as justification.

The absence of border controls in Europe remains closely linked to common rules on migration and asylum, many of which find their origin in the Schengen flanking measures. The New Pact on Migration and Asylum has hailed the Schengen area as one the most important successes in European integration, but given the continued disruption of borderless travel, exacerbated by the COVID-19 pandemic, one would have expected a ‘comprehensive’ approach to have included concrete proposals for the governance of the Schengen area. Yet, the Commission merely announced a Strategy on the Future of Schengen, to be presented in the first half of 2021.

This contribution will argue that although the exclusion of Schengen from the Pact may be justifiable, it does not mean there is no need for a deeper reflection on the future of Schengen. It will briefly discuss the limited innovations the Pact does introduce. Finally, it will identify three priorities for the new Strategy: reinstatement of borderless travel in Europe, compliance with the Schengen rules, and the long overdue enlargement of the Schengen area.

1. Reasons for the exclusion of ‘Schengen’ from the Pact

The Pact does not fully ignore the management of the external borders. To the contrary, the proposals on asylum and return will, when adopted, have a profound impact on the work of border guards and migration and asylum authorities working at the external borders. These are of course the proposed screening and border procedures. The electronic border architecture will be further boosted with the expansion of the EURODAC system from asylum database to fully fledged migration management tool.

However, the Commission does not put forward proposals for better enforcement and correct implementation of the Schengen rules. This omission may well be in line with the overall pragmatic approach taken by the Commission. As it currently stands, the Pact contains enough hard nuts to crack, as the failure to reach agreement on the main points by the German presidency would seem to confirm. Especially at a time of crisis, in which border controls and closures are playing a prominent role, a discussion on the power over borders may detract from other pressing questions.

One should also recall that Schengen cooperation extends beyond migration and asylum, into the realm of criminal justice and police cooperation. Over the past five years, it was not only the refugee crisis that led to the proliferation of internal border controls, but also (the threat of) terrorist violence that on more than one occasion had European leaders openly call Schengen into question. A proposal dating back to 2017 to extend the possibilities for Member States to reintroduce internal border checks based on security concerns, has been blocked in the Council for years due to diverging views of the Member States on the need to balance security with ensuring free travel across borders. Given that context, it may have been a wise decision to disconnect the security discourse from the otherwise already politicized discussion on migration and asylum.

Finally, the integrated management of the external borders, core to the Schengen acquis, is one of the few policy fields in the Area of Freedom, Security and Justice in which important progress had already been made before the presentation of the Pact. In the aftermath of the refugee crisis, important legislation was adopted, most notably the twice reinforced mandate of Frontex, the European Border and Coast Guard Agency, new IT systems for border management, such as the Entry-Exit system, and their interoperability. The Pact can therefore simply limit itself to a call for speedy implementation of these measures.

2. Integrated Border Management

External borders
The most relevant part for the Schengen cooperation of the Pact is part 4 on Integrated Border Management. The all too familiar call for a reinforcement of the external borders, included 1 January 2021 as the target date for the first deployment of the standing corps, which in light of recent developments and recruitment woes was a little too optimistic. Interoperability of large IT systems in the AFSJ should be fully functional by the end of 2023.

The section on integrated border management then continues with a paragraph on Search and Rescue (SAR), which quite frankly seems a little out of context. Despite emphasizing the responsibility of the Member States, the Pact calls for a more integrated and European approach, with greater operational and technical support by Frontex. Although SAR is indeed listed in the long list of elements that make up European integrated border management, the EU’s competence remains limited to SAR operations arising in the context of maritime border control operations.

Internal Borders
Most relevant for our purposes is section 4.4 of the Pact on the well-functioning of the Schengen area. With a sense of understatement, the Commission points out that the longer controls at the internal border continue, ‘the more questions are raised about their temporary nature, and their proportionality’. Suffice to say that the maximum period for reinstatement under the Schengen Borders Code Regulation (EU) 2016/399 is two years, and only under the exceptional circumstances of serious deficiencies in the management of the external borders leading to a danger to public policy and public security.

The Commission announced that it will present initiatives for a ‘stronger and more complete Schengen’, but is remarkably succinct on what such proposals could entail. There is mention of a ‘fresh way forward’ on the Schengen Borders Code, which seems to imply the withdrawal of the Commission’s 2017 proposal to extend the possibility to reintroduce internal border controls based on public security concerns. The Strategy should also cover proposals to improve the Schengen evaluation mechanism, which was reformed in 2011 as part of the Schengen governance package. Again, this is a bit of a repackaging exercise, as the mechanism was already due to be evaluated on the basis of Article 22 of the Schengen Evaluation Regulation itself, following the completion of the first multiannual programme (2014-19). The suggestion to give preference to controls in the territory over the reinstatement of border controls, making full use of new technology, is also not new.

What is perhaps interesting, however, is the reference to ‘less intrusive controls’, implying that controls themselves could be less problematic where they interfere less with cross-border movement, for instance through the use of cameras or targeted controls.

The one real innovation presented by the Pact is the introduction of a Schengen Forum, involving the relevant national authorities such as Ministries of Interior and (border) police at national and regional level in order to stimulate more concrete cooperation and more trust. Although building trust between national authorities and operational cooperation has from the very outset been part and parcel of integration in the justice and home affairs, the reintroduction of an intergovernmental governance element in the Schengen cooperation can hardly be described as a step forward. Bringing the Member States back into the picture seems to be logical and even defendable in times of crisis, even if it ignores the legal reality of a post-Amsterdam legal framework, and the establishment of Frontex for exactly that task.

The Forum is also to be the setting for a yearly discussion at political level to allow national Ministers, Members of the European Parliament and other stakeholders to bring political momentum to this process. It is unclear what the added value of this Forum would be to the work of the Justice and Home Affairs Council and the European Parliament’s LIBE Committee. It merely heralds the return intergovernmentalism in the AFSJ and bringing back national politics into fields that had been put at arm’s length of the Member States for good reason.

The precise role of the Forum remains undefined. A first online meeting of the Schengen Forum took place on 30 November 2020. The fact that Commission President Von der Leyen, Vice-President Schinas, as well as Commissioner Johansson addressed the Forum seems to say something about its perceived significance. However, other than a press release listing the topics for debate, no official documents have been made publicly available. Despite the involvement of the European Parliament, this does not augur well for the transparency and accountability of the Forum.

3. Three priorities for a new Strategy for Schengen

A new Strategy for the future of Schengen would need to address three pressing issues.

Reinstating borderless travel
The first issue to address is ending the quasi-permanent reintroduction of controls at parts of the internal borders and reinstating borderless travel in the Schengen area as provided for in Article 3(2) TEU, Article 67(2) TFEU and the provisions of Protocol (No 19) on the Schengen acquis.

This is clearly a very sensitive issue. Member States may have legitimate concerns for public policy or internal security, and more recently public health. Moreover, there is a fundamental assumption underpinning the Member States’ actions that despite clear rules on the reintroduction of checks, they ultimately retain full power over their borders.

This concerns not merely the internal borders. In fact, it is well accepted as regards the external borders and explains that the European ‘entry ban’ introduced to block non-essential travel from outside Schengen, is in reality a coordinated approach to the public health exception in the entry conditions of the Schengen Borders Code. At the internal borders, one would expect this to be less the case, given the existence of secondary legislation on the matter. But it does, nonetheless, explain the Commission’s reluctance to enforce the provisions of the Schengen Borders Code on the reintroduction of internal border checks. Only more recently, it has started to address questions to individual Member States, but only in the context of COVID-19 related controls.

A strategy cannot of course change the division of powers between the EU and its Member States as laid down in the Treaties. However, in an ideal world, and perhaps discussions in the Schengen Forum may contribute to this, the EU and its Member States come to a common understanding on how to balance the Member States’ responsibilities over their internal security, including their borders, with their participation in the Schengen area. If COVID-19 is here to stay then we can also expect more frequent reintroductions of controls to enforce health measures, especially if the plans for a vaccine certificate materialize.

Ultimately, and this may be sooner rather than later, the CJEU will need to provide guidance. The Court has already held that Member States do not have carte blanche to invoke internal security to do as they please and that matters of national security require a particularly high level of seriousnes s. The legal uncertainty as a result of the current situation is already the subject of a preliminary reference by the Austrian Landesverwaltungsgericht Steiermark.

When it comes to police controls as an alternative means for reinstated checks at the internal borders, the Commission would do well to codify the Court’s case law, as well as further specify, what is allowed in border areas and in the Member States’ territories under the guise of police and identity checks. If such controls are indeed to become more prevalent, safeguards must be put in place at EU level to ensure that they do not become even more intrusive in terms of profiling and the collection of personal data.

Schengen governance
The second point relates to a possible revision of the Schengen Evaluation Mechanism and is most closely related to Schengen governance. In the wake of the Franco-Italian affair, a regulation was adopted to recast the intergovernmental Schengen evaluation mechanism, still based on a decision of the Schengen Executive Committee and largely a Member State-driven process. Although the new mechanism is said to have significantly improved the evaluation of Schengen standards, especially in the field of external border management, both an external evaluation commissioned by the European Parliament and the Commission itself conclude there is room for improvement. Key concerns have been the slow follow-up to Commission reports adopted in response to evaluation reports adopted under comitology. Although the lack of transparency of the process did not emerge as a particular concern from the reports, there seems to be a disturbing lack of peer pressure. Any revision should therefore seek to balance the interest of public security, requiring a degree of confidentiality, with the need for scrutiny, in particular by the European Parliament and national parliaments. One way to improve this could be to allow the European Parliament to appoint a member of the evaluation teams, who could also ensure a more targeted information flow to its members.

A notable shortcoming of the system is the lack of fundamental rights scrutiny. The added value for this seems undisputed, and any revision of the mechanism should rightly include it. Evaluation visits, including the questionnaires used, should take on board the input of relevant EU and Member State actors, such as the Fundamental Rights Agency and national ombudsmen. These are often best informed of fundamental rights concerns in the application of the Schengen acquisat Member State level.

In addition to the Schengen Evaluation Mechanism, Frontex carries out a yearly Vulnerability Assessment on the adequacy and preparedness of Member States’ border management systems. Although the two mechanisms are meant to be complimentary and work in synergy, the exact relationship between the two remains legally undefined and practically underdeveloped. The deficiencies identified under either mechanism are meant to result in national plans for improvement, involving the active support of Frontex. However, in the absence of a satisfactory follow-up, both procedures could ultimately result in a Council Recommendation to reinstate internal border controls for a maximum period of two years.

The proposed Regulation for a European Asylum Agency provides for an equivalent of the Frontex Vulnerability Assessment Mechanism, focussing on Member States’ asylum systems instead. This mechanism is, however, five-yearly and lacks a similar backstop that is the threat of a Council Recommendation to reinstate border controls. Instead, in a worst case scenario, persistent deficiencies in Member States’ asylum systems could only lead to a suspension of the Dublin III Regulation (as under Article 8(3) of or under its envisaged successor, the Asylum and Migration Management Regulation). Given that arguably the reinstatements of internal border controls during and after the refugee crisis were motivated more by the deficiencies in the Greek asylum system, than in its external border management, the question arises to what extent Dublin and Schengen should not be regarded more as two sides of the same coin. It is not without reason that the rules on the allocation of responsibility for asylum claims were initially included in the Schengen Implementing Convention. Also, the participation of Schengen Associated Countries, like Norway and Switzerland, is premised on their cooperation in the Dublin rules. The question is therefore whether the threat of a reintroduction of border controls in response to systemic failures in a Member States’ asylum system could not act as more of an incentive for necessary improvements, than the possible suspension of Dublin transfer, responding to Member States’ concerns over secondary movements.

In the end, it would be important to recall that both the Schengen Evaluation Mechanism and the Vulnerability Assessment Mechanism come in addition to the Commission’s ordinary enforcement powers under the Treaty. They should however no be considered fully fledged alternatives. A Strategy for the Future of Schengen should provide guidelines on how the Commission intends to use its enforcement powers to ensure Member States’ compliance with the Schengen acquis.

Enlargement of the Schengen area
Finally, a new Strategy on the future of Schengen will need to address the position of Schengen candidate countries, i.e. those Member States that have acceded to the European Union, but have been effectively excluded from the Schengen area. Three of these countries, Bulgaria, Romania and Croatia have already been declared technically ready by the Commission to join the Schengen area, Cyprus is well under way. A number of Member States, however, have blocked the adoption of a unanimous Council Decision to allow the lifting of checks at the internal borders to the Schengen area, despite their technical readiness.

Member States in the Council, in particular France and the Netherlands, have been opposing full accession based on political concerns in relation to respect for the rule of law and corruption in the Member States concerned. The European Parliament has repeatedly called for an end to the exclusion of Romania and Bulgaria.

The current situation, in which several Member States find themselves in ‘Schengen purgatory’, has a number of undesirable consequences. It leads to a de facto duplication of the external borders and external border controls, creating uncertainty as to the applicable legal regime, given that internal and external borders have been defined as mutually exclusive. Schengen candidate countries have been increasingly participating in Schengen developing measures, most notably the interoperability regulations. They also guard their external borders in line with the Schengen Borders Code, and with the support of Frontex, yet they do not benefit from the advantages of borderless travel.

The Schengen Evaluation Mechanism is used to evaluate acceding Member States’ readiness to join the Schengen area in full, but as also observed in the report commissioned by the European Parliament this does not include a more general evaluation of the functioning of Schengen and the political context in the Member States under scrutiny. Future enlargements should explicitly include a path towards full accession to Schengen in the accession process, even if the actual lifting of border checks does not coincide with a country joining the EU. It should be clear that one does not change the rules of the game whilst the ball is in play. But it also requires that the legitimate concerns of Member States in relation to the rule of law, corruption and organized crime be sufficiently addressed, either inside or outside the Schengen Evaluation Mechanism.

EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE