The North Africa’s unrests and the massive displacement of people have put the Schengen system under increasing strain, which has given an excuse to the European Commission to call for more EU intervention diminishing Member State’s role in ensuring security of their borders. Last May, the Commission has considered introducing a mechanism allowing for temporary re-introduction of internal border controls under very exceptional circumstances, taking the view that such decisions must be taken at the EU level and not unilaterally by the member states. The European Council agreed 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.” Moreover, according to the European Council 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.” The Commission was, therefore, invited to present legislative proposals for such mechanism.
On 16 September, the European Commission adopted a package of measures to respond to the European Council requests and to the European Parliament’s July resolution requiring “that any new mechanism should focus on enhancing the freedom of movement and reinforcing EU governance of the Schengen area.” The Commission adopted a proposal for a Regulation amending Regulation No 562/2006 (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.
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, as proposed by the European Commission, would be activated by Brussels. The Commission believes that “The possibility to reintroduce controls at internal borders should (…) be based on a decision taken at the European level, instead of on the basis of a unilateral and sometimes opaque national decision.” The Commission proposal is, therefore, intended to prevent “unilateral decisions” by member states. Hence, the temporary reintroduction of border controls at internal borders would no longer be decided inter-governmentally but according to the Community method.
The Commission has stressed that “A serious threat to public policy or to internal security will remain the only grounds for the reintroduction of internal border controls.” Moreover, it pointed out “The adverse consequences of either a Member State's persistent failure to adequately protect a part of the EU's external border, or of a sudden and unexpected inflow of third-country nationals at a part of that border, could both, under certain circumstances, be characterised as constituting such a threat.” 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 the threats above-mentioned. Unsurprisingly, the assessment of the necessity of this measure would be made at EU level.
Consequently, 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 who 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.
Obviously, the Commission proposal is unacceptable to several member states, which, in fact, rejected it before it was formally presented.
It is important to mention that last November, the Commission proposed a drat Regulation on the establishment of an evaluation mechanism to verify the correct application of the Schengen acquis. The aim of the proposal is to transform the existing inter-governmental peer review approach into EU-based Schengen governance. 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.
In the meantime, the EU leaders agreed to strengthen the Schengen evaluation system. Consequently, the Commission has decided to amend its 2010 proposal to respond to the European Council´s request for a safeguard clause to be introduced to address situations where a Member State is unable to comply with its Schengen obligations.
Under the new 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. The Commission believes that this measure will encourage Member States to fully comply with their obligations under the Schengen rules and guidelines. The Commission would decide on the reintroduction of border controls, in these circumstances, via an implementing act, which shall be adopted in accordance with the examination procedure.
The Commission wants, therefore, 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. Obviously, Member States want to protect their borders but under the Commission proposal they would have to ask permission to the Commission do so. Before the Commission presented such proposals, the interior ministers of France, Germany and Spain issued a statement saying that “the decision to reinstate controls at internal borders temporarily must be based on a thorough assessment in terms of national security, which can only be carried out by the member states on the basis of the expertise and resources of their security services." They “believe that respecting the core area of national sovereignty is very important to member states.” Consequently, those member states “do not share the European Commission’s views on assuming responsibility for making decisions on operational measures in the security field.” These member states may form a blocking minority in Council.
The proposals are subject to the ordinary legislative procedure with QMV required at the Council. Taking into account that several member states are eager to preserve their ability to introduce border controls in exceptional circumstances, the Council would try to water down the Commission proposal. But, in the other hand, the European Parliament is likely to endorse it. The Commission proposal requires both approval of the European Parliament and the Council to be adopted, fierce negotiations are therefore expected.
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 "The UK government needs to get involved in this reform. The control of migrants into one EU country has implications on the flow of migrants into the whole of Europe, including the UK. 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."
