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Extension of temporary border controls according with the Commission Roadmap:A small step “back to Schengen” or just a shy attempt against further regression of the status quo?

This month, several initiatives concerning the Schengen Area of free movement have been taken at European level, either as consequence of the political pressure some (core) member States put on the European institutions either as developments of previous interventions by the European Commission in the field. This last has for umpteenth time found a small window of opportunity to push its own agenda, i.e. ensuring a proper European response to the mining effects of the migration crisis has provoked on normal functioning within the Schengen Area. After two years of repeated unilateral national decisions, this institution is regaining control of the situation, gradually appeasing the differences among EU States and the reciprocal mistrust that is nowadays shaping intra-EU relations.

On Monday 2 May 2016, five Schengen member States, already under a temporary regime of exceptional reinforced check at borders, sent a letter to Commissioner Dimitri Avramopoulos (DG Internal Affairs) to obtain an extension of the above mentioned temporary regime, in accordance with article 26 of the Schengen Borders Code (SBC). On Wednesday 4th May, Commissioner Avramopoulos agreed officially to the proposal, submitting a recommendation to the Council to let Norway and four EU members (Austria, Denmark, Germany and Sweden) extend the temporary border check system up to a maximum of six months. The possibility of such a delay of the temporary regime has been anticipated by the Commission itself in the Communication “Back to Schengen – A roadmap”, sent on 4th March 2016 to the European Parliament, the European Council and the Council. The Recommendation has been further adopted Thursday 12 May by the Council reunited in its Development formation, starting a new period during which the Commission will monitor and evaluate the concerned members States within 4 months, while these last will report to the Commission every 2 months.

The position of the Commission has been clearly defined in its abovementioned Communication released almost three months ago. One of the primary goals defined is to move “from patchwork to a coherent approach”, as “at this moment in time, there are serious deficiencies in external border control caused by a lack of border surveillance and insufficient registration and identification of irregular migrants. As a consequence of the secondary movements triggered by these deficiencies, member States have [unilaterally] reintroduced internal border controls. (…) If the migratory pressure and the serious deficiencies in external border control were to persist beyond 12 May, the Commission would need to present a proposal under Article 26(2) of the Schengen Borders Code to the Council recommending a coherent Union approach to internal border controls until the structural deficiencies in external border control are mitigated or remedied”. The Communication came after months of declarations by Commission representatives against the dangerous path undertaken by several member States in the last couple of years, following the intensifying arrival of refugees and asylum seekers at the Schengen external border.

Notably, since 2013 Commissioners Avramopoulos (Internal Affairs) and Bieńkowska (DG Internal Market) have constantly reminded that the reinstating of borders controls within Schengen was not only mining symbolically the EU, damaging one of the main pillars of European integration, but also economically damaging EU via the obstacles to a fluid circulation of tourists, students, professionals and goods.

Nowadays, queuing for border controls within the Schengen area appears unusual to the generation of European 20-somethings that experienced their first travels and the professionals whose routine of free-movement has consolidated over the last twenty years. If queuing at borders for ID/vehicle check gives a reinforced feeling of security, this last is nevertheless accompanied by a sense of wasting time and money. Moreover, this step back implicitly puts into question the capability of the ensemble of Schengen members of having achieved solid policy results. In this time of lack of confidence towards EU, the Schengen crisis add just more wood to the existing fire.

The cost of renouncing to Schengen

Born as an agreement to regulate and facilitate free movement within Belgium, France, Germany, Luxembourg and the Netherlands, the Schengen Treaty has gradually extended its membership to 26 countries. It conveys and reinforces one of the main pillars of the European Union, freedom of movement, despite the fact that four member States are still not part of it (Bulgaria, Croatia, Cyprus, Ireland, Romania and United Kingdom). The connecting power of Schengen goes beyond the EU, with Iceland, Lichtenstein, Norway and Switzerland being part of the area: an area where Europeans travel every year, covering as much as 1.25 billion of annual displacements.

Being without Schengen, or reinstating completely controls at national borders, would seriously damage European economy. Several research institutes have studied the so-called “no-Schengen costs”, for example the increase of trade costs would raise between 470 and 1400 billion euro, as estimated by the German Prognos Institute last February. Prognos’ study specified that additional costs related to time wasted could not be computed, but that in general rising costs would negatively impact international trade, augmenting prices of European export to other countries. If this increase would attain a mere 1%, the subsequent scenario would be that of 470 billion euro lost between 2016 and 2025. If the increase would reach 2%, the billion lost by EU would be 1400, of which 235 billion by Germany and 244 billion by France.

How did we end up speculating on no-Schengen?

In 2013, the increased movements of non-Europeans fleeing war zones and misery concentrated on the external borders of Europe, often with the objective of a precise second displacement, that is to say to pursue the road after entering the Schengen space trough one country to another as final destination. In absence of a coordinated reaction at European level capable of dealing with the new dimension of the migratory phenomenon, Schengen member States decided to reform the Schengen Borders Code (SBC) to establish a new, EU-based, “Schengen evaluation mechanism”. This last consists in the possibility to send inspection teams to make unannounced visits to internal borders in order to halt any “critical situations”, notwithstanding that the arrival of the inspection team (composed by experts from the member states, the Commission, EU agencies and bodies) would be notified to the member States concerned at least 24 hours in advance. Furthermore, the amended SBC contains common rules for the temporary re-instalment of checks at internal borders under exceptional circumstances, tolerable only as last resort measures. The feasibility of such measures must be based on specific objective criteria and on an assessment of its necessity, monitored at Union level, only for a limited amount of time.

It is within this legal framework that from 2015 onwards a series of unilateral decisions has been taken by several states, either because directly concerned by the arrival of migrants and asylum seekers, either because indirectly feeling exposed to secondary displacement of irregular migrants by the lack of capacity to keep the phenomenon under control at the external border (i.e. the maritime one). The first temporary control motivated by an “unprecedented influx of persons seeking international protection” has been disposed in 2015 by Germany between 13 and 22 September and soon reinstated. Other countries followed the example, with three of them having already suspended the temporary regime: in Belgium, controls between West-Vlaanderen and France ended last month (23/02/2016- 22/04/2016), while Slovenia and Hungary did not prolong controls, in force for 30 and 10 days respectively. Except France, all this States introduced measures within the meaning of article 25 of the SBC, which allows border controls for maximum two months for “cases requiring immediate action”. As the situation did not improve significantly, a prolongation up to six months was demanded, based on articles 23 and 24 of SBC, after the various delays would expire between May and June. Controls established at the French borders in November 2015 were not related to migration but to security issues, firstly in the context of the COP21 Conference, after extended as a consequence of the emergency state following the Paris terrorist attacks.

Before the extension granted on 12 May, temporary border controls were still in force in the following countries:

  1. Denmark (4/3 – 2/6/2016), all borders with particular focus on the sea and land borders with Germany;
  2. Norway (15/1 – 12/5/2016), all borders, with focus on ports with ferry connections to Norway via internal borders;
  3. Sweden (10/1 – 7/6/2016), all borders, with special focus on Southern and Western harbours and Öresund Bridge between Denmark and Sweden;
  4. Austria (16/11/2015 – 16/5/2016), all borders, the border can be crossed only at the authorised border crossing points;
  5. Germany (14/11/2015 – 13/5/2016), all borders, with special focus on the German-Austrian land border;
  6. France (13/11/2015 – 26/5/2016), internal land borders and air borders.

Within this background, the Recommendation submitted by the Commission on 4th of May concerned five of the six abovementioned countries (France excluded). As the combined legal base of articles 23, 24 and 25 does not allow to maintain controls beyond a total period of eight months, the coherent approach pursued by the Commission has been that of turning to article 26 of SBC, providing that if “the overall functioning of the Schengen area is put at risk” by exceptional circumstances constituting a serious threat to public policy or internal security”, the Commission “can submit a proposal to the Council for a Recommendation”, a possibility that concretised on 4th of May.

Temporary border controls are just a fraction of the more complex issue of a full comeback of the proper functioning Schengen system. Indeed, two thirds of the Roadmap proposal focused on restoring security at the Greek border, with a strong coordinated support by EU countries, EU agencies and with collective resources. In particular, the Commission renewed with the Roadmap the December 2015 proposal for a European Border and Coast Guard to address structural deficiencies in the Southern European maritime external border. On 12 February 2016, the Council adopted a Recommendation, followed by the European Council of 18-19 February, when three areas of intervention have been identified:

  • Normalising the state of migration management in Greece;
  • Restore the normal approach of asylum procedures, according with EU law;
  • Replace the existing mix of unilateral decisions with a unique coordinated approach to temporary border controls, within December 2016.

The European Commission Roadmap mirrors this three-branched approach, and full attention to the Greek question will be not addressed here, but in a forthcoming article.

A European Coastal Guard

As part of a unique coherent approach, the renewed proposal of a European Coastal Guard has presented as the main measure to deal with the urgency of the migratory phenomenon, the Commission defined insisting on the delay for the adoption of the proposed regulation should not exceed June 2016. If that will be the case, in August at the latest the European Coastal Guard could be operational, delivering the first vulnerability tests by September and allowing necessary preventive measures to be taken before autumn. The urgency being motivated now by the potential change of migration routes (so that every section of EU external borders should be secured and its defence rapidly activated) the Commission referred other measures to single countries and EU agencies to intervene while the juridical iter of the European Coastal Guard is completed. In the Communication, the Commission has prayed member States to promptly activate to pool resources, to support joint operations and border interventions carried out by Frontex agency. The suggestion of the Commission to Frontex has been that of collaborate, within the limits of its mandate, with the European Fisheries Control Agency and the European Maritime Safety Agency to prepare the steps further needed to let the European Border and Coast Guard. The ultimate goal is to lift all internal borders controls within the Schengen area within six months from their introduction, namely by mid-November 2016, adding the full operational European Coastal Guard, we will than have the European coherent response that has been lacking since the migration crisis started.

The absence of a true Schengen coalition or another shadow of euroscepticism

The real obstacle to a coherent European approach to solve the temporary malfunctioning of Schengen lies in the same nationalistic approach that led to the status quo these last years. Of course, it is recognizable that elected governments need to rapidly implement measures to appease phenomena perceived as threats to security by the electorate. And within the current post-economic-crisis phase intra-EU relations are now in, immediate agreement in policy responses to longstanding problems is just not part of current routine. On that note, we can open a parenthesis on the issue of the Brenner border, a case that can easily constitute an example of the actual (lack of) cooperation within the EU consortium. Again, the (shy) answer of the Commission could be considered as part of the attempt to surmount the initiatives taken by several countries to grab little by little control of border again (or the proclaimed “regained sovereignty”).

The dispute over Brenner boarder concerns Austria on one hand and Italy on the other, this last being a country that, as Greece, has carried the burden of patrolling the maritime external border of the EU and the Schengen area these last years. Already at the beginning of 2016, Prime Minister Matteo Renzi complained about the absence of a truly coherent approach to migration, pointing his finger to the absence of coordination and conciliation, as declared during an interview to newspaper Frankfurter Allgemeine Zeitung: “If we are looking for a European solution to the refugee problem, then it is not right that Angela [Merkel] first speaks to Hollande and then calls European Commission President Jean-Claude Juncker, and I only find out about it in the press later”.

Intensified controls over internal borders were then displayed by Austrian authorities, an attempt to calm citizens’ disappointment with the public managing of the incoming migrant. The current coalition government, formerly guided by socialist Werner Faymann, has hardened the national migration policy until passing a law that denies the principle of limitless acceptance. In April, tension mounted in Italy with respect to the campaign for presidential elections and the results of the first round held on 24 April. Norbert Hofer, the candidate for xenophobic Freedom Party (FPÖE) obtained 35% of the preferences, while the second best, Alexander van der Bellen (Greens), obtained only 21% of the preferences. Despite the victory of the Freedom Party, the most significant result has been the defeat of the socialists (SPÖ) and the populars (ÖVP), or the traditional order since the Independence of the Second Republic of Austria in 1955. The socialist Rudolf Hundstorfer and the popular candidate Andreas Khol didn’t reach 11%, while the Freedom Party has accomplished its best performance until now. The Freedom Party already made the headlines in the European press under the leadership of the controversial Jorg Haider, and the current leader Heinz-Christian Strache declared after the polls: « We have written history, today starts a new political era ». The aspiring President Hofer has declared to be willing to endorse a motion of distrust if the government will not adopt stricter measures towards incoming migrants. Needless to say, the extreme right in all its national facets has welcomed the result as the umpteenth confirmation of the European citizenship shift to eurosceptisism and xenophobia. Austria has then announced that it will be building a 370 metre long by 4 metre high barrier at the border with Italy, to stem the flow of migrants, unless Italy would allow Austrian police to patrol trains on Italian territory. It specified that 250 police officers would be mobilised from the end of May and 1500 Austrian soldiers would be available to intervene at the border. Only after a meeting with Italian Minister of Internal Affairs, his Austrian correspondent confirmed solemnly that, in exchange of a strengthened cooperation offered by Italy no walls will be built. But the international commitment of its government was suddenly compromised by the evolution of national politics, as on 8 May former Prime Minister Faynmann resigned after a seven years mandate, while tensions between black blocs and authorities exploded at the borders.

Finally the recommendation proposed by the Commission has been adopted by the Council on 12 May without granting the extension of temporary control based on article 26 of SBC to the Brenner segment. A decision that one could see as a reinforcement of the Commission to convey the nationalistic approach of Austria to more European senses. Indeed, as specified in the Roadmap, “any proposal by the Commission under article 26 of the SBC would only propose border controls at those internal border sections where controls would be necessary and proportionate to respond to the serious threat to public policy and internal security identified”.

Part of the general negative fate the EU is experiencing nowadays, the malfunctioning of Schengen can be an opportunity to finally embank egoistic pursuits of national solutions in order to satisfy eurosceptical electorates. One of the main pillar of the EU, the freedom of circulation and its consequent benefits must be preserved, and, in our opinion, better exemplified to reach the widest public possible. And 2016 could be remembered as “the year the Commission Roadmap put brakes to the collapse of Schengen”.

In an interview published on Project Syndicate, a reflection by Javier Solana, former « Monsieur PESC », former Secretary General of the Council of the European Union and former Secretary General to the Western European Union, defined the dark age in which Europe is now, and the lack of an European leadership that brought us to fragmented national closures: “The European Union has a dangerous case of nostalgia. Not only is a yearning for the ‘good old days’ – before the EU supposedly impinged on national sovereignty – fueling the rise of nationalist political parties; European leaders continue to try to apply yesterday’s solutions to today’s problems. (…) Everyone was supposed to benefit from European integration. Whenever a new country joined, it received financial aid, while existing members gained access to a new market. The advantages, it was expected, would be apparent not just from aggregate data, but also from individual citizens’ own experience. This represents a disappointing reversal. In my former professional roles, I witnessed, as few others did, the entry of Poland and Hungary into the Euro-Atlantic institutions. I saw first hand the eagerness and hope of their peoples at that momentous time. That is why it is so hard for me to understand their position today ».

Waiting for the second round of presidential elections in Austria on 22nd May, the Brexit referendum on 23rd of June and the juridical development around the European Coastal Guard proposal, we can only hope in a true commitment of the European Parliament and the Council to respect the deadlines stated in the Roadmap to offer a stronger policy against future political wind of change.

 

Francesca Sanna

For further information:

Adeline Silva Pereira

Après avoir effectué la deuxième année du master Sécurité Globale analyste politique trilingue à l'Université de Bordeaux, j'effectue un stage au sein d'EU Logos afin de pouvoir mettre en pratique mes compétences d'analyste concernant l'actualité européenne sur la défense, la sécurité et plus largement la coopération judiciaire et policière.

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