Last September, the European Commission adopted a package of measures to respond to the European Council and to the European Parliament invitation to present legislative proposals for a mechanism allowing for temporary re-introduction of internal border controls under exceptional circumstances. The European Commission takes the view that such decisions must be taken at the EU level and not unilaterally by the member states. It has, therefore, called for more EU intervention diminishing Member State’s role in ensuring security of their borders.

The Commission adopted a proposal for a Regulation amending the Schengen Borders Code in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances. Presently, under the terms of the Schengen Borders Code, a Member State is allowed to temporarily re-introduce border controls at its internal borders in exceptional circumstances, where “there is a serious threat to public policy or internal security.” In case of foreseeable circumstances, the Member State in question must notify other Member States and the Commission “as soon as possible” providing information about the scope and duration of the re-introduction, and the reasons for doing so.

As regards urgent cases, the re-introduction may be effected immediately. However, Brussels, as proposed by the European Commission, would activate the new mechanism. The Commission proposal is, therefore, intended to prevent “unilateral decisions” by member states. Consequently, the temporary reintroduction of border controls at internal borders would no longer be decided inter-governmentally but according to the Community method.

The Commission reiterated that the reintroduction of internal border controls is a measure of “last resort”, consequently it would only be contemplated if all the other measures have proved ineffective in mitigating serious threat to public policy or to internal security. Unsurprisingly, the assessment of the necessity of this measure would be made at EU level. Thus, under the Commission proposal, the general rule would be that any decision on the reintroduction of controls at internal borders would be proposed and adopted by the Commission as an implementing act, subject to the agreement of the member states through the examination procedure, in accordance with Regulation No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (comitology procedure which has been recently reformed providing more decision-making powers to the Commission). Under the examination procedure, the relevant committee (composed of member states civil servants) is required to deliver its opinion on a draft implementing measure by QMV. Hence, it is not the Council, as it used to be under the regulatory and management procedures, but the committee itself that may prevent the adoption of draft measures by the Commission if a qualified majority is against it.

Under the draft proposal, for foreseeable events, such as sport events and high-profile political meetings, where a Member State believes that controls at internal borders should be reintroduced because there is a serious threat to public policy or internal security at national or EU level, it shall present a request to the Commission providing all the relevant information, including the reasons, scope, date and duration of the proposed reintroduction. This also applies where a Member State wishes to reintroduce internal border controls in case of an inflow of third-country nationals at EU's external borders. Hence, member states which want to temporarily re-introduce border controls would have to ask permission to the European Commission and to justify their request. Then, the Commission will assess the situation and decide whether or not to allow the reintroduction of border controls at internal borders, through an implementing act adopted in accordance with the examination procedure, as abovementioned. Such decision would cover the scope and duration of the reintroduction of controls. The Commission would, therefore, specify where internal borders controls could exceptionally be reintroduced for a limited period of 30 days, with renewable periods, but with a maximum duration of six months. Consequently, member states would be unable to act without approval from the Commission, which is unacceptable.

Member States would be able to unilaterally reintroduce border controls at internal borders, in response to unforeseeable events, such as a terrorist attack or a massive and sudden influx of migrants. However, the reintroduction of border controls at internal borders in such circumstances is limited to five days then, they would have to ask the Commission for permission. The reintroduction of border controls can solely be extended, if it is based on a Commission decision taken as implementing act via the urgency procedure, in accordance with Regulation No 182/2011. Under this procedure the Commission would adopt an implementing act, which shall apply immediately, without prior submission to a committee. Then, the act would be referred to the relevant committee, which may oppose the Commission decision, by qualified majority.

The Commission wants to have a leading role whilst reducing member states ability to introduce temporary border controls in the Schengen area. Member States are, therefore, being asked to give away further national competences and to share more sovereignty. The European Commission completely ignored member states calls for national sovereignty to be kept. Member States want to protect their borders, but under the Commission proposal they would have to ask permission to the Commission do so. Hence, the Commission proposal is unacceptable to several member states. In fact, the majority of member states are against the idea of giving more decision making powers to the European Commission on the temporary re-introduction of border controls in the Schengen area. The Council has recently reached a general approach on the Commission’s proposal amending the Schengen Borders Code. Unsurprisingly, member states rejected the Commission’s proposal and voted to preserve their ability to introduce border controls in exceptional circumstances. The member states want the Council, not the European Commission, to decide, as a last resort, on the temporary re-introduction of border checks in the above-mentioned cases. Hence, under the compromise text, a member state will continue to be able to unilaterally decide to temporarily reintroduce border controls at internal borders in exceptional circumstances, i.e. where 'there is a serious threat to public policy or internal security'. Under the Commission’s proposal Member States would be able to unilaterally reintroduce border controls at internal borders, in response to unforeseeable events, but for a limited period of five days, but the Council has proposed a period of 10 days.

The Commission proposal requires both approval of the European Parliament and the Council to be adopted, as it is subject to the ordinary legislative procedure. Whereas the member states rejected the Commission’s proposal the MEPs are set to endorse it. The Council’s compromise text, which is now the basis for negotiations with the European Parliament, is likely to be opposed by the MEPs. Fierce negotiations are therefore expected.

It is important to note that the UK does not take part in adoption of this Regulation as it constitutes a development of provisions of the Schengen acquis, in which the UK does not participate, however as noted by Timothy Kirkhope, Conservatives and Reformists group spokesman on justice and home affairs "What happens in Calais and Normandy affects us and it is in our interests to allow countries on our doorstep to regain control over large flows of migrants – many of whom will ultimately be destined for the UK."

The Council also reached a general approach on the European Commission’s proposal on the establishment of an evaluation mechanism to verify the correct application of the Schengen acquis. The Commission main aim is to transform the existing inter-governmental peer review approach into EU-based Schengen governance. Presently, the European Commission has an observer status, but under the draft proposal, 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. Hence, it would have the main role in evaluating the way border checks are undertaken, imposing a duty on Member States to cooperate with it. The European Commission has based its proposal on Article 77(2)(e) which provides “the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning (…) the absence of any controls on persons, whatever their nationality, when crossing internal borders.” It is important to recall that the UK Government as well as the European Scrutiny Committee believes that Article 70 TFEU provides “a far better alternative legal base”. The European Scrutiny Committee has noted that “Article 70 TFEU contemplates that Member States, "in collaboration with the Commission", would be responsible for carrying out evaluations” whereas “the evaluation mechanism proposed by the Commission would appear to subvert this allocation of responsibilities.” In fact, under the compromise text agreed by the Member States, the Commission and the Member States would be jointly responsible for the implementation of the evaluation and monitoring mechanism. The Council unanimously decided to change the legal basis of the proposal from Article 77(2)(e) to Article 70 TFEU. Obviously, if the legal basis is changed the European Parliament would be removed from the decision making procedure as it would lose its co-decision power on a new evaluation mechanism for the Schengen area. Unsurprisingly, the MEPs are not pleased with the member states move, according to Carlos Coelho, the European Parliament's rapporteur on the proposal for an evaluation mechanism, the Parliament is considering to launch legal action against the Council before the European Court of Justice. According to Euractiv, ALDE Group President Guy Verhofstadt, said that MEPs “should even consider, if the Council continues with such an attitude, to suspend other legislative negotiations ongoing with the Council".

At the request of the European Council, the Commission proposed a safeguard clause to be introduced to address situations where a Member State is unable to comply with its Schengen obligations. Under the draft proposal, it would be possible for the Commission to make announced or unannounced visits to a given Member State in order to verify the application of the Schengen rules. Then, the Commission would draft a report following each visit identifying any shortcomings and comprising recommendations to address the deficiencies and deadlines for implementing them. The Member State in question would be required to present to the Commission an action plan to address any weakness identified. However, if the situation has not improved with the measures taken at the Union or national level, the Commission may propose a temporary reintroduction of internal border controls.

The Commission proposal introduces the possibility of using a mechanism for the reintroduction of border controls at internal borders where a Member State fails to control its section of the EU external borders, and as long as the circumstances would be such as to amount to a serious threat to public policy or to internal security at the Union or national level. This provision particularly targets Greece, which is failing to control its borders with Turkey. Whereas under the Commission’s proposal, the Commission would decide on the reintroduction of border controls, in these circumstances, via an implementing act, which would be adopted in accordance with the examination procedure, under the Council’s compromise text, the Council on the basis of a Commission proposal may recommend for member states to reintroduce border controls at internal borders.