A recent leak of a Council document proposes a potential suspension of the Schengen system for a duration of up to two years. This proposal stems from what are being termed “systemic deficiencies” in Greece’s management of its external borders, particularly concerning the influx of refugees and migrants. Such a suspension would provide any Schengen country the option to reinstate or implement border controls along their shared internal borders. While it’s unlikely that every Schengen country would exercise this option, it’s anticipated that several would choose to do so, especially given that a number already have active border controls in place.
This development comes on the heels of a report in the Financial Times, indicating that certain Member States are contemplating the possibility of excluding Greece from Schengen due to concerns over its handling of refugees and migrants at its external borders.
While it’s plausible that this threat of suspending Schengen is specifically directed at Greece, the ambiguity of the language leaves room for interpretation. Another possibility is that the intention is to threaten a suspension of the entire Schengen system, strategically placing the blame on Greece. Irrespective of the true intent, such a threat is fundamentally flawed, both from a legal and political standpoint.
Legal Dimensions
Completely dismantling the Schengen system without amending the EU Treaties is not possible, given the multiple references to it within those treaties. However, there are provisions for two forms of suspension: short-term (up to three months) and long-term (up to two years). The leaked Council document points to the potential utilization of the long-term suspension option.
Short-term waivers have always been an integral part of the Schengen system. These waivers permit individual Member States to temporarily reimpose checks at their internal borders when public policy or security concerns arise. Over the years, Member States have frequently invoked these provisions, typically for brief durations during major international events. However, with the ongoing refugee crisis, these provisions have been invoked more frequently and for more extended periods this autumn. A legal challenge is imminent if Member States intend to prolong these controls beyond the coming spring, as the reintroduction is limited to a maximum of six months.
In 2013, as a response to the “Arab Spring” and disagreements between Italy and France over responsibility for Tunisian migrants, the Schengen rules underwent modifications. These amendments introduced provisions for the collective reimposition of internal border controls for a period of up to two years. To fully grasp the implications, these amendments should be interpreted in conjunction with the existing rules they modified. The codified version, inclusive of amendments, can be found in the annex of the report I compiled for the SIEPS think tank, which focuses on the revised rules.
While the 2013 amendments were widely understood to essentially provide for the potential suspension of individual Member States from Schengen, this isn’t explicitly stated in the regulations. The leaked Council document appears to have broader intentions, as it explicitly refers to the continuation of existing border controls between countries like Germany and Austria, not solely between other Member States and Greece. Nevertheless, the role of individual Member States remains pertinent because this collective suspension of Schengen can only be triggered if “serious deficiencies” exist in how a Member State enforces the Schengen external border rules.
Typically, the process would commence with a recommendation from the Commission following a Schengen evaluation, adhering to the distinct rules (also amended in 2013) that govern the assessment of whether Schengen states are fulfilling their obligations. Should the Commission’s report identify “serious deficiencies” in a Member State’s adherence to its external border control obligations, it can recommend “specific measures” for that country to take. These could include accepting assistance from Frontex, the EU’s border agency, and presenting plans for Frontex’s assessment.
If insufficient progress is made within three months to address these concerns, the situation can escalate. In exceptional cases where public policy or public security within the Schengen area, or parts of it, faces a “serious threat,” the Council, as a last resort, can recommend to Member States that they reimpose border controls against the Member State in question. These controls can be implemented for periods of six months, renewable up to the maximum duration of two years. There’s an argument to be made that this process could be expedited and applied even without granting the Member State the full three months to rectify its shortcomings. Since a qualified majority vote from Member States in the Council is required, it’s safe to assume that most Member States would likely uphold such a recommendation. While the Council must act upon a proposal from the Commission, Member States have the right to request the Commission to draft such a proposal.
When adopting this recommendation, the Council is obligated to assess whether it will adequately address the threat to public policy and determine the proportionality of the measure in relation to the threat. This assessment must be grounded in comprehensive information and take into account any EU assistance provided or potentially requested, the probable impact of the border control deficiencies on the public policy or security threat, and the ramifications for the free movement of people.
Legality of Suspending Schengen and/or Sanctioning Greece
The current status of the process concerning Greece remains unclear. While the Commission recently adopted a Schengen evaluation report, it hasn’t been made public. It’s even uncertain whether the report specifically pertains to Greece, as evaluations are conducted for all Schengen states. Consequently, unless the process is expedited, it would take a minimum of three months from the point of a formal “serious deficiencies” finding—which, to my knowledge, hasn’t occurred yet—before any sanctions could be levied against Greece.
It appears, however, that the Council document aims to fast-track this process, urging the Council to preemptively request a Commission recommendation to suspend the abolishment of border controls for a duration of up to two years. Given that there hasn’t been a formal determination of “serious deficiencies” on the part of Greece, the prerequisite three-month period during which those problems persist hasn’t even commenced. Moreover, the Council document doesn’t even attempt to address whether the substantive criteria are met; the objective appears to be simply finding a justification for extending the duration of the internal border checks that Member States have recently reinstated.
Should the current threats escalate to the point of a Council Recommendation to reimpose border controls, it’s unclear whether Greece would have grounds to sue the Council in the EU Court of Justice (given that Recommendations aren’t legally binding). Alternatively, Greece might have to sue individual Member States for adhering to the Recommendation. Individual travelers could also potentially sue Member States in national courts for implementing border controls, indirectly challenging the legality of the Recommendation, which could then be referred to the Court of Justice.
Procedural matters aside, is there a legitimate basis for suspending Schengen rules and reinstating border controls due to “serious deficiencies” stemming from Greece’s management of its external border? There are significant doubts about the existence of such grounds for two primary reasons.
Firstly, according to the Financial Times article, other Member States are discontent because Greece declined Frontex assistance, failed to register a sufficient number of asylum-seekers, and didn’t request humanitarian aid. While the EU border control legislation addresses the refusal of Frontex support, the other issues are not covered. There’s a compelling reason for this omission: the inability to regulate the influx of refugees at external borders does not constitute a violation of Schengen rules.
This assertion might seem unexpected given that critics of the EU’s response to the refugee crisis, regardless of their stance, often presume that EU law mandates the refusal of entry to refugees and asylum-seekers at its borders. One side criticizes the EU for permitting entry to refugees and asylum-seekers, accusing it of failing to safeguard its borders. Conversely, the other side condemns the EU for constructing a “Fortress Europe.”
Both sides are demonstrably mistaken, at least concerning this specific legal matter. This is evident from the Schengen Borders Code itself, which explicitly exempts refugees from penalties associated with unauthorized entry for non-EU citizens and includes an exemption from standard border crossing conditions for non-EU citizens seeking asylum. This is further corroborated by the EU’s asylum procedures Directive, which mandates that Member States process asylum applications submitted not only within their territories but also at their borders. It’s important to acknowledge that Member States don’t always fully comply with their EU legal obligations.
The controversy, therefore, lies with the border crossing rule itself, not with Greece’s alleged failure to enforce it. The rule presents a practical political challenge, either because it’s perceived as ineffective in stemming the flow of people (from one perspective) or because it’s deemed too difficult for legitimate refugees to reach EU territory without facing the risk of drowning or resorting to smugglers (from the other perspective).
However, when assessing whether Greece exhibits “serious deficiencies” in its management of external borders, the crucial point is that Greece is not in breach of any obligation to prevent asylum-seekers from crossing its external borders simply because no such obligation exists. In fact, the opposite is true. The sheer volume of arrivals makes it challenging for Greece to maintain a functional asylum system, but this shortcoming is subject to a separate process altogether. The European Court of Human Rights and the CJEU have previously ruled that Member States cannot return asylum-seekers to Greece due to the effective collapse of its asylum system. The Dublin III Regulation outlines regulations for instances where the Dublin system requires suspension for such reasons, and the EU recently adopted Decisions (discussed elsewhere) aimed at alleviating the burden on Greece by relocating some asylum-seekers from the country.
Undeniably, a portion of those who cross the Greek border don’t immediately apply for asylum or are subsequently unsuccessful in their asylum applications. According to UNHCR data, approximately half of the recent arrivals on the Greek island of Lesvos, a primary destination, originate from Syria and Iraq (countries with high refugee recognition rates), while the other half come from countries with lower recognition rates. In this context, it’s reasonable to suggest that Greece should welcome assistance from Frontex and other EU agencies, particularly recognizing Frontex’s role in coordinating the fingerprinting and registration of individuals upon their arrival. It’s crucial to note that fingerprinting irregular migrants and asylum-seekers isn’t a reactionary, authoritarian response to the refugee crisis, but a longstanding legal obligation within the EU, dating back to 2003.
The second concern pertains to the connection between the alleged Greek “deficiencies” and the reimposition of border controls, either targeting Greece specifically or between other Schengen states. There’s no apparent link between these “deficiencies” and the borders separating Greece from other Schengen States, as none of these are land borders, and (potential) asylum-seekers and refugees primarily travel by land between Greece and other Member States. Therefore, scrutinizing individuals flying between Greece and other Schengen States would be a disproportionate response to the purported deficiencies.
What about the border controls between other Schengen States? The Council document explicitly advocates for the continuation of these controls. In this instance, a connection exists between those who initially entered through Greece and later attempt to cross borders such as that between Austria and Germany. However, the fundamental deficiencies lie within the EU’s asylum system, not with Greek border control measures, as EU regulations provide for the admission of asylum-seekers. Asylum-seekers move on to other Member States because the Dublin rules were not designed for the current influx of asylum-seekers, and Greece lacks the capacity to manage the numbers it would be responsible for under these regulations. While this presents a legitimate problem, it isn’t rooted in shortcomings in Greece’s external border controls. Addressing this problem necessitates the utilization of the legal instruments available under the EU’s asylum policy.
Political Landscape
Although not explicitly stated, the political subtext of the Council paper might involve pressuring Greece into accepting further border control measures. This is apparent from the Financial Times article, which highlights various allegations leveled against Greece by Member States. In response, the Greek government has defended its actions and counter-accused the EU, as outlined in an article in The Guardian.
This situation bears resemblance to the efforts made by certain Member States earlier this year to coerce Greece into a “temporary” exit from the euro. As previously argued, this strategy lacked any legal basis unless one subscribes to the unconventional argument that Greece’s eurozone membership was never legally established.
However, there are distinctions in the context of Schengen. A process for the temporary suspension of Schengen rules exists on paper; the contention arises in the interpretation of these rules. Some might disagree with the interpretation offered here, arguing that deficiencies in the asylum system are implicitly factored into the assessment of “serious deficiencies” in external border control. In the absence of legal precedent, it remains to be seen which interpretation would prevail. It’s also uncertain whether the Commission, a staunch advocate for Schengen, would be willing to endorse a two-year suspension.
Even if threatening Greece in this manner is legally permissible, the question of its wisdom remains. The EU faced significant criticism for attempting to bully Greece regarding the euro, even though it was technically the “Eurogroup” bodies, operating outside the formal EU political structure, rather than the EU institutions themselves, making the threats.
A more prudent course of action for the EU would be to intensify its efforts to support both Greece and the affected individuals by ensuring adequate reception centers and living conditions within the country. Additionally, the EU should prioritize improving the effectiveness of the relocation system and collaborate with Turkey to meaningfully enhance the living conditions of refugees residing there, thereby reducing the impetus for their departure.
Concerning Schengen, if a temporary suspension is deemed essential, a more transparent approach would be to introduce a legislative amendment to the Schengen Borders Code, incorporating a “sunset clause” to ensure its eventual expiration, as a permanent suspension would contravene the Treaties. This would be preferable to resorting to indirect threats against Greece. Alternatively, amending the rules governing checks near internal borders could provide a basis for occasional checks in the event of dysfunctional applications of EU asylum rules, particularly if rectifying those rules proves politically unfeasible, which is a distinct possibility.