Schengen - strengthening the area without internal border controls to guarantee free movement - guide

19 September 2011
by eub2 -- last modified 19 September 2011

The European Commission has proposed to strengthen the Schengen area to guarantee free movement for the hundreds of thousands of EU citizens and third countries' nationals travelling within this territory every day. The Commission's proposals aim to put in place a more efficient and EU-based approach to Schengen cooperation. Particular challenges that may put the overall functioning of the Schengen area under strain need to be addressed in an effective and coordinated manner. The proposals provide for a stronger EU-based evaluation and monitoring system to verify and ensure the application of the Schengen rules, and for a more structured European decision-making mechanism that could allow for the temporary reintroduction of internal border controls in case of serious threat to public policy or internal security.

What are the current rules for reintroducing internal border controls?

Under the Schengen Borders Code, Member States have the possibility to exceptionally reintroduce border controls, where there is a serious threat to public order or internal security (Article 23). For foreseeable events, a Member State shall notify the other Member States and the Commission in advance, but in cases requiring urgent action a Member State may immediately reintroduce border controls at internal borders. The reintroduction of border controls is in principle limited to a period of 30 days.

To date, the re-introduction of border controls at internal borders has been used both for foreseeable and unforeseeable events, mainly to enable police authorities to deal effectively with the security implications of major sporting events, political demonstrations, or high-profile political meetings. A unilateral re-introduction of border controls has never exceeded 30 days, and has usually been for a much shorter period of time (see the 2010 report on the application of the Schengen Border Code - IP/10/1329 and MEMO/10/488).

The Commission proposes to shift from the current Schengen system allowing for unilateral national decisions to a coordinated European response. However, Member States would still retain the possibility to take unilateral action to reintroduce controls where they are faced with unforeseen emergencies requiring immediate action, but only for a period not exceeding 5 days, after which an EU-level decision would be taken allowing for any extension.

Why is it best to allow for a coordinated decision at the European level?

The Commission is convinced that only a coordinated and EU-based process will be able to guarantee a consistent approach across all Member States. An EU-led mechanism would increase trust among Member States by allowing all European interests to be taken into account and would reduce recourse to unilateral action by Member States.

There is a clear need for such a coordinated European response not only for situations where the area without internal border controls is affected because one of its Member States is confronted by a serious short-term, largely localised, threat to public policy or internal security, but also in order to deal with situations which have wider and more prolonged implications. In both instances, a coordinated European response is warranted, as it is inherent in any decision to reintroduce internal border controls – even for a limited period of time and within a limited geographic area – that the human and economic implications will be felt beyond the confines of the national territory of the State resorting to such measures.

In terms of truly critical situations with wider and more prolonged implications, the case for such a coordinated European approach is all the more compelling, as this concerns in particular situations where a section of the external border comes under unexpected and heavy pressure due to external events, or where a Member State has been persistently failing to effectively control its section of the external border.

How would a decision be made under the new regime?

The proposals adopted today set out in detail the circumstances in which the reintroduction of internal border controls would be triggered and implemented under the Schengen Borders Code, including the circumstances in which a critical evaluation under the revised Schengen evaluation mechanism could ultimately result in a decision to temporarily re-introduce some internal border controls.

The normal rule would be that all cases involving the reintroduction of internal border control should be dependent on a 'comitology' decision proposed and adopted by the Commission as an 'implementing act', with the involvement of Member States via the so called 'examination' procedure – where the decision is taken if a 'qualified majority' (a majority weighted in accordance with the relative sizes of the Member States) of Member States agree.

The decision would specify where border controls can exceptionally be reintroduced and would be valid for renewable periods of up to 30 days, with an absolute maximum of six months. Exceptionally, this six month period could be extended for situations where the reintroduction of internal border controls results from an adverse finding under the Schengen evaluation mechanism related to a Member State's persistent failure to adequately protect its section of the external border.

Nevertheless, for unforeseeable events, Member States retain the possibility to unilaterally reintroduce border controls if immediate action is needed. In such cases, the reintroduction of border controls would be limited to five days. Any extension of that period would need to be based on a Commission decision taken as an 'implementing act' via a special urgency procedure.

In which situations could the temporary and exceptional reintroduction of internal border controls be envisaged?

A serious threat to public policy or to internal security will remain the only grounds for the reintroduction of internal border controls. These grounds remain unchanged from the ones specified in the Schengen Borders Code today.

The Communication (see Annex 2) adopted gives a description of the main kinds of situations in which the temporary and exceptional reintroduction of internal border controls might be considered. These include:

1. Foreseeable events with a largely localised short-term impact

Experience shows that this type of scenario corresponds to the situations most likely to give rise to decisions on the reintroduction of internal border controls, for example in relation to major sporting events, political demonstrations, high-profile political meetings and so forth.

In such cases, a Member State needs to inform the Commission well in advance about the event and the underlying reasons why the reintroduction of some border controls are considered to be necessary and indispensible. The Commission will then analyse the situation and verify whether there are no other means which might be more appropriate to react to the possible threat to public order or internal security. The Commission, before taking a decision on the reintroduction of border controls, would need to consult the Member States and stakeholders concerned and to be convinced that this would be the only measure likely to be effective, having considered all other alternatives. The Commission would also take full account of a number of factors including the overall impact on the flow of persons within the Schengen area, and controls at internal borders can only be introduced after consultation of Member State experts and if a 'qualified majority' of them agree with what is proposed. In case the Committee cannot agree on an opinion a decision can nonetheless be adopted.

2. Urgent unforeseen, short-term events requiring immediate action

Some events that give rise to a need to take drastic short-term measures to safeguard security or other critical public interests, including the possible reintroduction of internal border controls for a limited period, are by their nature unforeseeable. This could be the case, for example, in the event of a terrorist attack or other major criminal incidents, where there is a need to take all possible measures to ensure the prompt apprehension of the perpetrators.

Under such circumstances, a Member State can reintroduce border controls immediately for a period of five days. If the threat persists beyond these five days, the Commission, after assessment of the situation, may decide that border controls need to be maintained. The Commission would then inform the other Member States about its decision, and if they oppose this decision by a so-called 'qualified majority', then border controls would need to be lifted again.

3. A persistent deficiency to manage a section of the EU external border

In certain circumstances, it may be necessary, as a last resort and after having exhausted all other measures, including technical and/or financial support measures, to mitigate the adverse impact of the failure by a Member State to control its section of the external borders by resorting to the temporary reintroduction of some internal border controls.

The deficiencies in border management would be identified in a report prepared as part of the evaluation mechanism which would include recommendations to address the deficiencies. The Commission would first ask the Member State concerned to take certain specific measures such as requesting support from Frontex or closing a specific border crossing point for a period of time with a view to rectifying certain weaknesses. However, if these measures prove ineffective in addressing the deficiencies, the Commission could propose a temporary reintroduction of internal border controls. Before taking such a serious step, the Commission would take full account of a number of factors including the overall impact on the flow of persons within the Schengen area.

Why do we need a mechanism for dealing with persistent deficiencies or external factors putting the Schengen system at strain?

The Schengen area is vital for everyone living in Europe. Travelling without passports is a reality for hundreds of thousands people every day. We need to preserve and reinforce this common achievement.

The system is not currently equipped with the necessary tools to deal with deficiencies due to weaknesses in the control of the external borders or to external factors beyond our control. The Union must be able to address these diverse challenges, while safeguarding the citizen's right to free movement.

In its Communication adopted on migration adopted on 4 May 2011, the Commission announced its intention to look into the possibility of introducing a mechanism to handle those situations. The European Council of 23-24 June 2011 called for such a mechanism and invited the Commission to submit a proposal in September 2011.

Travelling without internal border controls within the Schengen area is a major European achievement benefiting all those living and travelling in this area. The possibility to reintroduce controls at internal borders should therefore be based on a decision taken at the European level, instead of on the basis of a unilateral and sometimes opaque national decision. An EU based mechanism would enable to respond effectively and in a timely manner to exceptional challenges which risk jeopardising the overall functioning of Schengen.

Why is the reintroduction of controls at internal borders a 'last resort' measure?

The reintroduction of some controls at internal borders should remain a truly exceptional option, to be used only in critical situations, for a limited period of time and after a coordinated decision at EU level based on a careful analysis of the possible threat.

It should be contemplated only if all other alternative supportive measures to restore the integrity of the Schengen area have proved ineffective. Both the proposal on the establishment of a Schengen evaluation mechanism (article 14 and 15) and the one amending the Schengen Borders Code (Articles 23-26) make that clear.

The types of measures Member States should resort to in the first instance are also detailed in the Communication. They include seeking practical support from Frontex (through joint operations or the deployment of border guards), the European Asylum Support Teams (through the deployment of Asylum Support Teams to help the country deal with the arrivals of asylum seekers) or EUROPOL (which can assist if the challenge faced has a criminal dimension, for example if criminal networks are involved in smuggling or trafficking migrants).

Member States should also cooperate with third countries of origin or transit and make full use of available EU funding. For instance, in the 2010 and 2011 programmes, €425 million is available under the External Borders, the Return and the European Refugee Funds for the six Member States most exposed to migratory pressure from North Africa (i.e. Cyprus, France, Greece, Italy, Malta and Spain).

What does the reintroduction of controls mean in practice?

A reintroduction of controls implies that Member States could carry out systematic checks and surveillance at internal borders. The nature, extent and intensity of border checks would depend on the nature of the threat the State is confronted with.

However, it must be emphasized that, even in the event of the reintroduction of border controls, EU citizens can in principle enter the territory of another Member State on the simple presentation of a passport or ID card. All procedural safeguards enjoyed by an EU citizen and his or her family members remain in place. Equally, third country nationals legally staying within the Schengen area will be able to continue to travel on the basis of their travel document and, where necessary, their valid visa or residence permits. Reintroduction of border controls only means that authorities may verify whether all entry conditions are fulfilled.

How will the revised Schengen evaluation mechanism ensure a better application of the rules?

The abolition of internal border controls is accompanied by measures in the field of external borders, visa policy, the Schengen Information System, data protection, police cooperation, and judicial cooperation in criminal matters. Only if the Schengen rules and regulations are applied effectively, consistently and in a transparent manner by the Member States can European citizens benefit fully from free movement.

The Commission had already proposed in November 2010 to shift from the current intergovernmental system of peer review to a Union-led approach with the participation of experts from Member States and Frontex, under the leadership of the Commission. In particular, it proposed to introduce a clause providing for unannounced visits of experts and inspectors, and clearer rules for the follow-up to evaluations.

In addition to these improvements the new evaluation and monitoring process now also foresees measures aimed at assisting the Member State in question in fulfilling the recommendations adopted as part of the evaluation process (as detailed above).

However, despite the implementation of these support measures, there might be situations where deficiencies in the management of the external border are still not adequately addressed. The revised proposal therefore includes the possibility for the Commission to decide on the temporary reintroduction of some controls at the internal border of the evaluated Member States for a period of time, enabling those shortcomings to be remedied.

The new mechanism would play a more decisive role, ensuring that this 'ultimate sanction' will encourage Member States to fully comply with their obligation under the Schengen rules and guidelines.

Who is concerned by the Schengen evaluation mechanism?

The proposal only concerns verification that the Schengen rules are correctly applied by those Member States who are already part of the Schengen zone. The Verification of conditions for a State to become a member of the Schengen zone remains under the full responsibility of the Council. Decisions on Schengen membership are taken by the Council after consultation of the European Parliament.

How will the Commission improve accountability and democratic controls?

The legislative proposals provide for the European Parliament and Council to be regularly informed of evaluation reports established in the context of the new Schengen Evaluation and Monitoring mechanism, including as regards recommendations addressed to Member States for the remedying of deficiencies identified. The Parliament and Council must also be informed about any reintroduction of internal border controls. In addition, Member State representatives are involved in the decision-making process as members of the so-called 'comitology' committees which the Commission must consult before taking any decision in relation to the adoption of evaluation reports and recommendations, or on the temporary reintroduction of any internal border controls.

How will the Commission enhance political guidance over the functioning of the Schengen area?

The Commission will present a biannual overview to the EU institutions on the functioning of Schengen. This will provide the basis for a regular debate in the European Parliament and in the Council and contribute to the strengthening of political guidance and cooperation in the Schengen area.

Source: European Commission