Commentary by Steve Peers
This is Council document 14300/15, from December 1, 2015, called “Integrity of the Schengen area,” and sent to Coreper (representatives of EU member states) and the Council - likely the Justice and Home Affairs ministers meeting December 3rd and 4th. (An official version of the document is available here).
The first three sections are relatively standard (see here for discussion), but section 4 proposes initiating a process to formally permit the reinstatement of internal border controls within the Schengen zone for a duration of up to two years. Legally, this requires ‘serious deficiencies’ in a specific Member State’s border control.
This has been portrayed as a plan to exclude Greece from Schengen. However, the document implies a wider objective, encompassing the entire Schengen area. This intention is evident in the reference to extending the border controls implemented by many Member States this fall, which are limited to a maximum of six months. Utilizing the ‘serious deficiencies’ clause, instead of the standard clause for suspending Schengen, clearly aims to enable a much longer suspension. While internal border checks might not be universal, the intention appears to be the issuance of a blank check for this purpose.
For more legal details (and the legality of this), see the parallel blog post.
Document text:
INTRODUCTION
The recent migrant and refugee crisis, particularly the large influx over the last few months, has put significant strain on both the Schengen and asylum acquis. In response, several Member States have temporarily reintroduced border controls at their internal borders, citing a serious threat to public policy or internal security as permitted by the Schengen Borders Code. Temporary internal border controls have also been implemented by one Member State in response to terrorism, following the November 13, 2015 Paris attacks. Furthermore, some Member States have implemented specific measures to strengthen controls at their external borders.
In its November 9, 2015 Conclusions on measures to handle the refugee and migration crisis, the Council identified several measures to fully realize the orientations already agreed upon by the European Council [1]. These measures cover a broad range of issues, such as reception capacities, hotspots, relocation, return, readmission, resettlement, uncooperative migrants, contingency planning, the functioning of the Schengen area, external and internal borders, human smuggling, visa policy, a common information strategy, and the use of the Integrated Political Crisis Response (IPCR).
In the November 20, 2015 Conclusions on Counter-Terrorism after the Paris terrorist attacks, the Council and Member States agreed to implement enhanced counterterrorism measures, including strengthening controls at external borders[2].
Under point 9 of its November 9, 2015 Conclusions, the Council decided “to conduct at the December Justice and Home Affairs Council, on the basis of the 8th bi-annual reporting by the Commission, a thorough debate on the functioning of the Schengen area (1 May 2015 - 31 October 2015) and on the lessons learned from temporary reintroductions of controls at internal borders”.
However, on November 26, 2015, the Commission informed Coreper that the 8th bi-annual report wouldn’t be ready for the December 2015 JHA Council meeting, but would instead be incorporated into the upcoming border package. The Presidency concluded that Ministers would be asked to participate in a debate on the Schengen area’s functioning based on a Presidency paper.
To prepare for this discussion, the Presidency distributed a questionnaire on lessons learned from temporary internal border control reintroductions [3]. The Presidency has now drafted this paper based on Member State responses and considering significant issues raised in recent months regarding the Schengen area’s functioning, focusing on border controls.
ISSUES FOR DISCUSSION
The Presidency invites the Council to discuss the functioning of the Schengen area, focusing on the following internal and external border control issues.
1. Consultations between Member States – Based on the available information, it appears that, in cases where Member States recently applied Article 25 of the Schengen Borders Code to temporarily reinstate internal border controls, there wasn’t adequate prior consultation with other Member States. Similar issues were observed regarding the technical reinforcement of borders between border crossing points, changes in national policies resulting in migrant filtering at border crossing points, and the organization of migrant transit from one border to another. This has significantly hindered the ability of neighboring countries to adapt to changing migration routes and all Schengen countries to manage migratory flows cohesively.
Additionally, procedures approved by Coreper in March 2015 for enhanced information sharing regarding temporary internal border control reintroductions haven’t been fully implemented in all instances.
The Presidency proposes that:
- Even in urgent situations under Article 25 of the Schengen Borders Code requiring immediate action, a Member State opting to temporarily reinstate internal border controls should make every effort to inform neighboring Member States with sufficient notice, allowing them to adjust and, whenever possible, cooperate to minimize the negative impact of reinstated internal border controls;
- Member States reaffirm their commitment to fully implement the procedures for enhanced information sharing on temporary internal border control reintroductions, as agreed upon in Coreper in March 2015. [4]
2. Securing external borders – A number of irregular migrants entering or re-entering the EU bypass official border crossings by using “green land borders” (land borders between designated crossing points). According to Frontex, over 1.2 million illegal border crossings were detected at EU external borders between January and October 2015, a 431% increase compared to the same period in 2014. Additionally, many illegal crossings go unregistered, making the true figure unknown.
Regarding counterterrorism efforts, the Council concluded on November 20, 2015, that control at the most vulnerable external borders should be strengthened, “in particular by deploying, when the situation so requires, rapid border intervention teams (RABITs) and police officers in order to ensure systematic screening and security checks”.
Given the current critical situation, the Presidency proposes that:
- Significantly greater efforts are needed to prevent illegal border crossings (entry and exit) through external “green land borders” and ensure that external borders are crossed only at designated border crossing points, as per Article 4 of the Schengen Borders Code, with exceptions outlined in Article 4(2);
- RABITs are deployed as necessary for this purpose, particularly relevant for external land borders along the Western Balkan route;
- A Frontex operation is deployed without delay at Greece’s northern borders to address severe difficulties encountered with neighboring countries.
3. Increasing checks regarding illegal migration – Irregular migrants who’ve entered the Schengen area undetected should not remain so for extended periods.
- The full potential of internal Schengen area checks, including the use of relevant databases, be utilized to ensure that irregular migrants are identified, registered, and their cases processed.
4. Addressing serious deficiencies in external border controls – Recently, several Member States have temporarily reinstated internal border control under Articles 23-25 of the Schengen Borders Code. These provisions restrict such controls to a maximum of six months. Extending this situation requires the Council, based on a Commission proposal, to adopt a recommendation in accordance with Article 26 of the Schengen Borders Code. Such a recommendation may be adopted in exceptional circumstances to address persistent, serious external border control deficiencies identified by a Schengen evaluation, where measures outlined in Article 19a of the Schengen Borders Code are ineffective. In such cases, if the overall functioning of the border-free area is at risk and the exceptional circumstances pose a serious threat to public policy or internal security within the area or parts of it, the internal border control reintroduction period can be extended up to a maximum of two years.
Therefore, the Presidency:
- Proposes that the Council requests the Commission to consider presenting a proposal, as appropriate, pursuant to Article 26 of the Schengen Borders Code, for a Council recommendation for one or more Member States to reintroduce border control at all or specific parts of their internal borders;
- Believes that, concurrently, all efforts should be made to strengthen the normal functioning of the Schengen area, particularly by enhancing external border control.
Photo credit: Sputniknews.com
Barnard & Peers: chapter 26