Brussels refuses to accept that its policies, particularly the cornerstones of the EU integration, the euro and Schengen, are not working. But, it is well known that the pillars of EU integration, Schengen and Eurozone, are now falling apart. The North Africa’s unrests and the massive displacement of people, particularly from Tunisia and Libya, have put the Schengen system under increasing strain. This has given an excuse to Brussels to further develop common policy responses. Unsurprisingly, the European Commission has called for more EU intervention and regulations diminishing Member State’s role in ensuring security of their borders.

On 24 June, the European Council stressed, “The free movement of persons, as established in the Treaty, is one of the most tangible and successful achievements of European integration as well as being a fundamental freedom.” Nevertheless, the EU leaders have decided to reform Schengen. They agreed that “Political guidance and cooperation in the Schengen area need to be further strengthened, enhancing mutual trust between Member States,(…)” Moreover, the EU leaders pointed out, “Europe’s external borders must be effectively and consistently managed, on the basis of common responsibility, solidarity and increased practical cooperation.”

The European Commission has been calling for the Schengen evaluation mechanism to be based on a Community approach. In fact, last November, the Commission proposed a drat Regulation on the establishment of an evaluation mechanism to verify the correct application of the Schengen acquis. According to the Commission, taking into account the recent events, the adoption of such proposal, is a “priority.” Whereas presently, the European Commission has an observer status under the draft proposal would have the main role in evaluating the way border checks are undertaken. The Commission would be responsible for the implementation of the evaluation mechanism to assess whether Member States are correctly implementing the provisions of the Schengen acquis. The EU leaders agreed to strengthen the Schengen evaluation system, and called for “An effective and reliable monitoring and evaluation system.” According to the European Council’s Conclusions “The future Schengen evaluation system will provide for the strengthening, adaptation and extension of the criteria based on the EU acquis.” The EU leaders agreed that “The evaluation should be EU-based and involve experts from the Member States, the Commission and competent agencies.” The Commission was therefore invited “to regularly report on the results of evaluations and where necessary propose measures to respond to any deficiencies which are identified.”

It is important to recall that the Regulation establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) provides for the absence of border control of persons crossing the internal borders between the EU Member States. Under the regulation Member States 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, but such measures are exceptional. Last April, France and Italy proposed a reform of the Schengen system, which would allow member states to re-impose internal border controls temporarily in case of a major influx of migrants. It is clear that Schengen is not protecting and serving all Member States interests.

In May, the Commission adopted a Communication on migration, where it has considered introducing a mechanism allowing for temporary re-introduction of internal border controls under very exceptional circumstances. According to the Commission such mechanism would allow “the Union to handle situations where either a Member State is not fulfilling its obligations to control its section of the external border, or where a particular portion of the external border comes under unexpected and heavy pressure due to external events.” Whereas presently the member states may introduce border controls on their own, in case of a serious threat to public policy or internal security, it seems the new mechanism would be activated by a EU decision in the above-mentioned cases, such as massive influx of migrants. According to the Commission the future mechanism would allow “for a decision at the European level defining which Member States would exceptionally reintroduce internal border control and for how long.” Consequently, it would be Brussels to determine "exceptional circumstances.” Moreover, the Commission has stressed that such mechanism “should be used as a last resort in truly critical situations, until other (emergency) measures have been taken to stabilise the situation at the relevant external border section either at European level, in a spirit of solidarity, and/or at national level, to better comply with the common rules.”

The European Council has stressed that “A mechanism should be introduced in order to respond to exceptional circumstances putting the overall functioning of Schengen cooperation at risk, without jeopardising the principle of free movement of persons.”  The EU Leaders pointed out that such mechanism would comprise several measures “to be applied in a gradual, differentiated and coordinated manner in order to assist a Member State facing heavy pressure at the external borders” such as “inspection visits and technical and financial support, as well as assistance, coordination and intervention from Frontex.” The EU leaders endorsed the idea of a Schengen suspension mechanism. One could say that the influx of migrants to the EU are challenging Schengen and threatening the free movement of people as Brussels has now decided to re-introduce checks at internal Schengen borders. The European Council agreed on the introduction of a mechanism allowing member states to temporarily reintroduce border controls within the Schengen area in emergency situations. It was agreed that a “safeguard clause could be introduced to allow the exceptional reintroduction of internal border controls” but “As a very last resort,” and “in a truly critical situation where a Member State is no longer able to comply with its obligations under the Schengen rules.” According to the European Council Conclusions “Such a measure would be taken on the basis of specified objective criteria and a common assessment, for a strictly limited scope and period of time, taking into account the need to be able to react in urgent cases.”

The Commission was invited to present a proposal for such mechanism in September.  The Commission, in its legislative proposal, will "clarify the circumstances", establish common criteria and procedures under which a member state could introduce temporary border checks. No agreement has been reached yet on whether the decision to reintroduce border controls would be taken collectively by member states or by the European Commission. Mr Barroso, reiterated that the Commission supports the reintroduction of temporary border controls but such decisions must be taken at the EU level and not unilaterally by the member states. The Commission is calling for a “coordinated Community-based response by the Union” in crises situations, instead of Member States´s unilateral measures to temporarily reintroduce internal border controls. In fact, the Commission wants to have a leading role in deciding when border controls could be reinstated. However, this is a national power therefore not all member states, including Germany, France, Austria and the Czech Republic, are willing to have Brussels deciding this matter. They believe there should be an assessment at European level of the situation, and frontex should be involved, then it should be up to the member states to decide. In the other hand, the European Parliament is very likely to be against the idea of reforming Schengen. The Commission proposal requires both approval of the European Parliament and the Council to be adopted, fierce negotiations are therefore expected.

The Commission stressed in its Communication on migration, that it wants to intensify coordination of border surveillance by putting forward, this year, a legislative proposal to set up EUROSUR. The Commission wants to integrate all present reporting and monitoring systems in sea areas under the jurisdiction of the Member States and in adjacent high seas into a broader network. The main aim would be “to allow Member States' authorities carrying out border surveillance activities to share operational information and to cooperate with each other and with FRONTEX.” Presently, the UK Government has no intention in opt into such legislative proposal. The European Council stressed that “Responsibility for the control and surveillance of the external borders lies with the Member States…” However, the European Council noted “In order to ensure that Europe's external borders are effectively managed and that the same standards apply everywhere, all relevant instruments must be used in an optimal manner and be adapted where necessary.” Consequently, the EU leaders called for the European Border Surveillance System to “be further developed as a matter of priority in order to become operational by 2013 and allow Member States' authorities carrying out border surveillance activities to share operational information and improve cooperation.”

The Commission has been expressing its willingness to set up new tools for the future development of an integrated border management strategy, such as a European entry-exit system intend to ensure that data on the crossing of the border by third country nationals would be accessible to border control and immigration authorities, as well as a registered traveller programme which would allow nationals from third countries to use an automated border control. The European Council also endorsed the idea of “smart borders”, and called for an “entry/exit system and a registered travellers' programme” to be introduced. Obviously, such proposals would require considerable investment by the EU and the Member States, and would be too costly.

In the above-mentioned Communication, the Commission urged the Council and the European Parliament to adopt, as a matter of urgency, the proposal amending the Regulation establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX). In fact, a political agreement on the proposal to amend the Frontex Regulation was reached between the European Parliament, the Council and the Commission one day before the Council. The EU leaders also welcomed such agreement. They said, “In line with the Stockholm Programme, the framework for cooperation between national border guards will be further developed, notably by promoting common training and the sharing of capacities and standards.”

Under the agreement reached, Frontex will be allowed to buy or lease its own equipment or buy equipment jointly with member states. Presently, the EU Member States voluntarily and upon request from another Member State, put equipment for border control and surveillance at disposal for a temporary period. However, under the revised proposal Member states' contributions would become compulsory as well as contributions of border guards to participate in joint operations, rapid interventions and pilot projects. The border guards to the agency would be deployed as "European border guard teams."

The European Commission has been calling for a Common European Asylum System to be completed by 2012. The European Council reiterated that “It is crucial that the Common European Asylum System (CEAS) be completed by 2012, based on high protection standards combined with fair and effective procedures capable of preventing abuses and allowing for rapid examination of asylum applications in order to ensure the sustainability of the system.” In the other hand, the UK Government has been saying that a common asylum system is not in the UK's national interests. The Secretary of State for the Home Department, Theresa May, in a statement after the Justice and Home Affairs Council, which was held on 9 and 10 June, said “the UK stated that it did not believe that the common European asylum system was in the UK's national interest and any further opt-in decision would be taken on a case-by-case basis, taking account of national interests.” Moreover, she pointed out that “The UK opposed suspension of the Dublin arrangements for the return of asylum seekers to their first port of entry into the EU and relocation or burden-sharing options but supported practical co-operation.”

The Dublin Regulation provides the criteria to establish which Member State is responsible for examining an asylum claim. The main principle is that the Member States that allows an asylum seeker to enter the EU (whether legally or illegally) is responsible for deciding his claim. The Commission’s proposal would introduce a new procedure allowing for the temporary suspension of Dublin transfers. Under the Commission’s proposal, Member States may request that the transfer of applicants for international protection to be suspended if they are facing a particularly urgent situation which places an exceptionally heavy pressure on their reception capacities, asylum system or infrastructure and the Dublin transfer would make the situation worse. This procedure of suspension of transfers may also be used in cases where the Commission considers that Dublin transfers could result in applicants for international protection not benefiting from adequate standards of protection in the responsible Member State. The temporary suspension of the Dublin system has been the most controversial issue during the negotiations. The UK, as well as other member states, is opposed to such mechanism. In the other hand, member states, including Malta, Italy and Greece favour the proposal. The Commission was hoping, taking account the recent events, more Member States would be willing to accept such proposal for EU-wide suspension mechanism. The proposal is going through the ordinary legislative procedure with QMV required at the Council, consequently the UK cannot veto such proposal. However, it seems David Cameron was able to build a blocking minority against the proposal. David Cameron said “I was worried before this European Council about potential proposals to suspend the Dublin arrangements that allow us to return asylum seekers to the countries from which they have come,” but “I’m glad to report that Britain and Germany together made sure that those proposals aren’t even referred to in any way in the Council conclusions.”