The signatory states of the Schengen Agreement (France, Germany, Belgium, Luxembourg and the Netherlands) decided, in June 1985, to create a territory without internal borders – the Schengen area. Then, in 1995, the Convention implementing the Schengen Agreement abolished checks at the internal borders of the signatory states and created a single external border. In 1997, the Amsterdam Treaty incorporated into the framework of the EU the Schengen Agreements and the rules adopted under them. The Schengen agreement was, therefore, a huge step towards EU integration. In fact, it has been seen as one of the main pillars of the EU beside the euro. The North Africa’s unrests and the massive displacement of people, particularly from Tunisia and Libya, have put the Schengen system under increasing strain, as thousands of migrants and refugees have arrived in Italy and Malta.

The Schengen founders have not foreseen migratory pressures like the one Europe has now been subject to. The EU response to the emergency situation has exposed the weaknesses of the Schengen system and border management. The UK has not given up its right to exercise controls on persons seeking to enter its territory. The UK is not bound by the Schengen acquis. The UK has an opt out from Schengen and Justice and Home Affairs policy, however the Labour Government had given away a considerable amount of powers in this area. The former Government opted into several immigration and asylum measures rather than staying out. Therefore, the UK has been losing its sovereign power to control its own borders to the EU. One could wonder for what Member States gave up power over fundamental issues of economic and monetary policy, border controls and immigration. The EU is, clearly, not working. The main pillars of EU integration (Schengen and eurozone) are now falling apart.

Last February, the Italian government declared a state of emergency due to the arrival of thousand immigrants from Tunisia. Italy and Malta have been calling for the EU to help them to deal with the influx of illegal migrants from North Africa. They asked for financial aid and for the other Member States to agree to resettle some of the migrants. Italy and Malta have been invoking the principle of solidarity. However, Member States are divided over the issue as they want to defend their own national interests. Many EU Member States, particularly Germany, France, Britain and the Scandinavians countries have shown their unwillingness to share the burden of illegal immigrants and asylum seekers.

The Schengen system is not working. Italy and Malta cannot cope with the massive influx of migrants, and on the other hand, Member States cannot be forced to share such a burden. Last April, the Italian government has decided to grant migrants from Tunisia six-month residency permits, allowing them to move freely throughout the Schengen area. Many Tunisians, particularly French speakers, started heading to France. France has contested the legality of such permits and reacted by re-imposing border controls, blocking trains at the Italian border and returning immigrants back to Italy. The EU Commissioner for Home Affairs, Cecilia Malmstrom, took the view that France has not broken any rules, “In a letter received this morning, France said it was a question of public order and a very limited, singular case.” She noted “Based on the information we had so far, they were not in violation of the Schengen border code and they had the right to do it.

It is important to recall that Article 77 TFEU states that the Union “shall develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal border.” Moreover, 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. It sets out rules on crossing external borders and on reintroducing checks at internal borders. 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. The regulation provides “Where there is a serious threat to public policy or internal security, a Member State may exceptionally reintroduce border control at its internal borders for a limited period of no more than 30 days…” The Member State which is planning to reintroduce border control for internal borders is required to notify the other Member States and the Commission and provide information on it. Then, the Commission may issue an opinion. In cases requiring urgent action, Member States “may exceptionally and immediately reintroduce border control at internal borders”, but they “shall notify the other Member States and the Commission accordingly,…

The rules that France fervently defended when being introduced no longer suit it and it is demanding that they be changed. In fact, France and Italy have 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. Last April, they agreed on a letter addressed to the European Council President and the European Commission President, demanding changes to be made to the Schengen system, which should be agreed by the European Council in June. They also called for the EU to activate the mechanism of temporary protection “if a mass influx of displaced persons from Libya were to occur.

Taking into account the current developments in the Mediterranean and the French and Italian demands on 4 May, the Commission adopted a Communication on migration, presenting several initiatives covering issues such as strengthening border control and completion of the Common European Asylum System. According to the Commission the uprisings in the Southern Mediterranean “have confirmed the need for a strong and common EU policy in the field of migration and asylum.” Unsurprisingly, the present crisis has given an excused to the Commission to proceed with further integration. According to the Commission “the current crisis confirms the need for increased solidarity at the European level and better sharing of responsibility” but it has recognised “that the EU is not fully equipped to help those Member States most exposed to massive migratory movements.” The general programme “Solidarity and Management of Migration Flows” provides for several funds, including the External Borders Fund, which for the period 2007-13 has resources amounting to €1820 million. The UK does not participate in this fund but it has opted in to the other funds, including the European Refugee Fund (€614 million) the Return Fund (€676 million) and the European Integration Fund (€825 million). The Commission pointed out that “these funds can not be mobilised easily; they are designed to intervene in a stable situation and not to tackle emergencies and crisis”, thus it believes that these solidarity mechanisms are not enough for supporting those Member States, such as Italy, Malta, Greece and Cyprus, which are “more directly exposed to massive arrivals of irregular migrants”. Consequently, it is suggesting that EU funding, under the next Multi-Annual Financial Framework, should be adapted so that it can be “mobilised much more rapidly and flexibly” in the event of emergencies. The amount allocated to the above-mentioned funds is very likely to be increased in the next EU financial framework.

The European Commission is therefore eager to increase solidarity at the EU level. Hence, it is planning to put forward further proposals during this year “on delivering solidarity in a holistic manner”, which “will include the possibility of ad hoc measures that can be resorted to in case of particular temporary pressure on one or several Member States.” The Commission has in mind to put in place “more structural means of ensuring solidarity, both financial and in the form of practical cooperation and technical assistance.” It is important to recall that the Lisbon Treaty introduced a new legal base – Article 80, which states “The policies of the Union set out in this Chapter (border checks, asylum and immigration) and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States…” The Commission is therefore planning to implement this provision, which makes an explicit reference to “financial implications.” One could wonder what the upcoming Commission proposals entail but it seems that Member States would have to share the costs of asylum, immigration and border control policies. The UK has an opt out in this area. Therefore, it remains to be seen which “financial implications” the UK will be subject to.

In the meantime, some Member States, particularly Malta, have asked for the temporary protection mechanism, foreseen in the Council Directive 2001/55/EC, to be activated, which would allow people fleeing Libya to be granted refugee status. This Directive establishes minimum standards for giving temporary protection in case of a mass influx of displaced persons. However, the European Commission and several Member States, particularly, Britain, and the Netherlands consider that the conditions to trigger the temporary protection mechanism have not been met yet. The Home affairs commissioner, Cecilia Malmstrom said: “There are perhaps over 2000 refugees from Libya, 800 in Malta – which is a lot for a tiny island, but not enough to trigger this mechanism.” In the present Communication, the Commission said that it “will closely monitor the continuously evolving situation and may decide, if the relevant conditions are met, to trigger the Temporary Protection Directive to provide immediate and temporary protection to displaced persons from third countries that are unable to return to their country of origin.” The Home Secretary, Theresa May has already shown the unwillingness of the UK government in participating in an EU scheme of ‘burden sharing’ of migrants from North Africa. However, it is important to note that the UK has opted into this directive, it is, therefore, bound by it. The directive provides that a Council Decision may establish the existence of a mass influx of displaced persons, adopted by a qualified majority on a proposal from the Commission. Such decision would also determine the Member States’ obligations as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced person. The Directive provides for a solidarity mechanism aimed at reaching a balance of effort between Member States in receiving displaced persons in the event of a mass influx. Such mechanism may consist of financial aid (European Refugee Fund) and the actual reception of persons in the Member States. Under the Directive “The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity.” Hence, the UK might be required to receive persons who are eligible for temporary protection, to alleviate burdens on the most affected Member States. This clearly should be a decision taken by the UK government, not imposed by Brussels.

Under pressure from France and Italy and in order to “safeguard the stability of the Schengen area”, the Commission is considering introducing a mechanism allowing for temporary re-introduction of internal border controls under very exceptional circumstances. Whereas Nicolas Sarkozy and Silvio Berlusconi have asked for more powers for the Member States in taking such decisions, the European Commission is likely to give more power to itself. The Commission is calling for a “coordinated Community based response by the Union” in crisis situations, instead of Member State unilateral measures to temporarily reintroduce internal border controls.

According to the Commission such a 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, the new mechanism will be activated by an 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 for 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.

In the meantime, one day before the Justice and Home Affairs Council meeting to discuss the Commission’s proposal to reinstate border controls under “exceptional circumstances”, Denmark, without waiting for the ministers decision on the issue, notified the Commission of its decision to re-establish controls at its borders with Germany and Sweden. Denmark’s decision was not based on external factors such as influx of migrants but by internal political factors and concerns with cross border crime. Denmark’s Finance Minister Claus Hjort Frederiksen said “Over the past few years we have seen an increase in trans-border crime, and this is designed to curb the problem,” This is another clear example that Schengen is not working. The chairman of the European Parliament’s European People’s Party, Joseph Daul, said “It is unacceptable that states pick and choose things they like from European integration but are not ready to stick to agreements in a responsible manner in a spirit of solidarity.” However, if there is a crisis and Brussels does not respond accordingly Member States have to react and defend their interests. Denmark believes that this move is in accordance with Schengen acquis as it would not involve systematic passport checks.

The majority of the Member States as well as the European Parliament reprimand Denmark’s decision to, unilaterally, re-establish border controls. Cecilia Malmström, has already announced her concern over the Danish government’s intentions of establishing a permanent customs control at Denmark borders. According to the Commission’s preliminary legal assessment there are concerns that, if such measures are implemented Denmark could breach its obligations under EU and international law. Mr Barroso, in a letter sent to the Prime Minister of Denmark, Lars Lekke Rasmussen, mentioned, in particular, the obligation to comply with the “free movement of goods, persons, services and capital, and the provisions of the Schengen Borders Code.” The Commission will seek further information, but, in the meantime, Ms Malmstroem called “on the Danish government to refrain from taking unilateral steps and to make sure that any measures taken are in line with the relevant law.” She stressed that the Commission “will, if needed, use the tools at its disposal to guarantee the respect of EU law.” The European Commission is, therefore, threatening to launch infringement proceedings against Denmark, should it conclude that there has been a breach of the EU rules.

On 12 May, an extraordinary meeting of the Justice and Home Affairs Council discussed the Commission´s communication on migration, which, according to the Council’s conclusions, “was broadly welcomed by Member States.” Moreover, Member States have shown their “unanimous position that the free movement of persons is one of the main achievements of the European acquis and that it must be preserved.” The interior ministers particularly focused their attention on the Commission’s proposal for the introduction of a mechanism which would allow Member States to temporarily re-introduce border controls within the Schengen area under special circumstances.

Not all Member States, such as Cyprus, Belgium, Spain and Malta support the plans to restore border controls. Nevertheless, it seems that the majority of Member States agreed to change the Schengen rules and to clarify conditions under which Member States should be allowed to reinstate border controls. According to Hungarian Interior Minister, Sandor Pinter, the majority of the Member States take the view that internal border control should not be reintroduced based on unilateral decisions of Member States. However, no agreement has been reached yet on such conditions and how the decision to reintroduce border controls would be taken. The Commission takes the view that the decision allowing a Member State to reintroduce border checks should be taken at the European level. In fact, the Commission wants to have a leading role in deciding when border controls could be reinstated. According to Sandor Pinter, the majority of Member States support such idea. 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. Member States have therefore been divided over how to deal with a sudden influx of migrants from North Africa, whether to reintroduce border controls and on which powers should be given to the Commission. An agreement on these issues is expected at the upcoming EU summit on 24 June. The Commission will present, next month, proposals to “clarify the circumstances”, establish common criteria and procedures under which a Member State could introduce temporary border checks. It is important to note that several MEPs believe that the Commission should have condemned the idea of re-imposing border controls and not endorse it, as such move will put at risk freedom of movement. The European Parliament is very likely to be against the idea of reforming Schengen. The Commission is expected to put forward a proposal amending the Schengen Borders Code, which would require both approval of the European Parliament and the Council to be adopted.

The Commission has stressed “The creation of the Schengen area is one of the most tangible, popular and successful achievements of the EU.” But, it acknowledged that the “Recent events have also triggered concerns about the functioning of the Schengen system.” In order to “safeguard this achievement “ the Commission is planning to introduce further measures to “strengthen external borders.”

The Commission noted “the Union still relies on an intergovernmental system of peer reviews to ensure the application of the common rules” and called 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,” as “A specific evaluation mechanism is necessary to ensure both mutual trust between Member States and the capacity to effectively and efficiently apply all Schengen provisions.” 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 Commission noted that “Weaknesses at some sections of the external border undermine confidence in the credibility of the Union’s ability to control access to its territory, and undermine mutual trust.” However, in order to ensure citizens “that external border controls are working properly”, the Commission is planning to introduce more EU regulations. It is important to recall that the inclusion of the concept of an “integrated system of external border management”, in the Lisbon Treaty, represents a huge step towards the creation of a ‘European Border Guard’ with consequences to national sovereignty. The creation of a European Border Guard entails external border control standards, which would have to be implemented by national forces in charge of border controls that have different powers and cultures. In the present Communication, the Commission reiterated its intention to create a European system of borders guards, which, according to the Commission, would imply “the creation of a common culture, of shared capacities and standards, supported by practical cooperation.” It remains to be seen what the Commission proposal would entail, but one could say that Member States would be required to introduce significant changes to their national services in charge of border controls.

It is important to mention that in February 2010, the Commission adopted a proposal amending the Council 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 the present Communication, the Commission stressed, “it is now urgent, especially in the light of recent events, that the Council and the Parliament approve this proposal before the end of this semester….” The UK is not bound by the Frontex regulation, but it is allowed to participate in joint operations on a case-by-case basis. The UK has been contributing to the cost of joint operations as well as other activities in which it participates. 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 Commission proposal Member states’ contributions would become compulsory as well as contributions of border guards to participate in joint operations and pilot projects.

The Commission also wants to intensify coordination of border surveillance by putting forward, this year, a legislative proposal to set up EUROSUR. Since 2008, the European Commission is trying to develop EUROSUR, as it believes that it will strengthen the EU’s borders by tracking illegal migrants and traffickers using modern technology such as satellites, unmanned planes and sensors. 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 Commission reiterated 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. Obviously, such proposals would require considerable investment by the EU and the Member States, and would be too costly.

The Commission has reiterated its call for a Common European Asylum System to be completed by 2012. In December 2008, the European Commission put forward the first proposals of the second phase of harmonisation so that a single asylum procedure and a uniform international protection status can be established. The Commission presented proposals to amend the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation. In 2009, the Commission adopted proposals to amend the Qualification Directive and the Asylum Procedures Directive and proposed the establishment of a European Asylum Support Office. The European Asylum Support Office has already been established and it is expected to be fully operational by June 2011.

The UK government has decided not to opt in to the revision of the EU Directive on Reception Conditions for Asylum Seekers. This was the first time that the Labour Government decided to opt out from an asylum measure. The former Government has opted into the 2005 Procedures Directive and the 2004 Qualification Directive. But it has decided not to opt into the recast proposals of the Qualifications Directive and the directive on minimum standards on procedures in Member States for granting and withdrawing international protection as they “would pose a significant risk to the UK’s asylum system.” However, the former Government has decided to opt into the recast proposal of the Dublin II regulation. 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, which 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 Commission would be required to notify the Council of such a decision, which would then have one month, acting by qualified majority, to take a different decision. 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. It remains to be seen whether, taking account the recent events, more Member States would be willing to accept such proposal for EU-wide suspension mechanism, and what it will come out from the negotiations with the European Parliament. In the present Communication, the Commission pointed out that “A balanced agreement on the revision of the Dublin Regulation must be reached, including on a last resort emergency mechanism in case of exceptional pressures, and on the revised Eurodac system.” The Commission has also announced that will present modified proposals on the Reception Conditions and the Asylum Procedures Directives in order to circumvent further deadlocks in the Council. Ms Malmström believes that a political agreement will be reached by the summer. The Hungarian Interior Minister, Mr Pintér, pointed out “that the great majority of the Ministers are committed to establishing a Common Asylum System in 2012.”

The European Commission has been calling for the resettlement of refugees to become an integral part of EU asylum policy. Hence, it has urged the European Parliament and the Council to adopt, as soon as possible, the EU joint resettlement scheme proposed by the Commission, in 2009, which is presently blocked in the Council. The planning of resettlement activities is mainly done through bilateral contacts between resettlement countries and the UNHCR. Each EU Member State has its own resettlement criteria. However, the Commission wants more coordination of resettlement activities at the EU level. The first step has already been taken towards full harmonization of resettlement criteria. The Member States participation on the joint EU Resettlement Programme is voluntary, but Brussels will coordinate, through the EASO, the resettlement activities of the participating Member States. Consequently, Member States will have reduced influence in deciding resettlement priorities themselves.

One could say that the recent events in North Africa and the influx of migrants to the EU are challenging Schengen and threatening the free movement of people as Brussels is considering re-introducing checks at internal Schengen borders. Is this the beginning of the end of Schengen? According to EuObserver, Ms Malmstrom said: “No, absolutely not. It would be very dangerous if it was, Schengen is one of the fundamentals of freedom of movement in the EU.” The recent events have put Schengen at stake, but it has also given an excuse to Brussels to further develop common policy responses. Brussels refuses to accept that its policies, particularly the cornerstones of the EU integration, euro and Schengen, are not working. Unsurprisingly, the European Commission has called for more EU intervention and regulations diminishing Member State’s role in ensuring security of their borders. Member States would be asked to give away further national competences and to share more sovereignty. The EU is set to have increasing powers to manage frontiers, taking into account the “gradual introduction of an integrated management system for external borders” as foreseen in the TFEU. Moreover, the Commission proposals would entail more financial and administrative burdens for the Member States.