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European Union: Schengen Area and Re-Introduction of Border Controls

(Dec. 8, 2015) On December 1, 2015, Luxembourg, which is at present holding the rotating Presidency of the European Council, invited the Council of the European Union to hold a debate on the functioning of the Schengen area and to discuss a number of issues that have been raised due to the unprecedented influx of migrants, whose arrival at EU borders since January 2015 has had a severe impact on the Schengen area.  (The Presidency of the Council of the EU , European Council/Council of the European Union website (last visited Dec. 8, 2015); The Presidency, Integrity of the Schengen Area, 14300/15 (Dec. 1, 2015).)

The Schengen area is the area in Europe where people can cross internal borders without being subjected to border checks.  All the 28 EU Member States, except the United Kingdom and Ireland, are members of the Schengen area.   Iceland, Lichtenstein, Norway, and Switzerland, are not EU Member States but participate in Schengen.  Bulgaria, Croatia, Romania, and Cyprus, although in the EU, are not full-fledged members of Schengen yet but will be participating in the talks.  (Schengen Area, European Commission Migration and Home Affairs website (last visited Dec. 8, 2015).)

In response to the migrant crisis, a number of EU Members have resorted to re-imposing internal controls to curb the number of migrants entering their country.  Under the Schengen Borders Code, such temporary measures are allowed.  (Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code) (as amended), 2006 O.J. (L 105) 1.) France, for example, after suffering terrorist attacks in November 2015, has already introduced internal controls to protect its population from future attacks.  (Integrity of the Schengen Area, supra.)

The Luxembourg Presidency has identified the following issues to discuss and the following recommendations to be considered:

  • Prior Consultation Between EU Member States. Re-imposition of border controls is permitted by article 25 of the Schengen Borders Code in emergency cases, after prior consultation between the Member State concerned and the neighboring Member States. The Code also requires notification of the Commission. However, as the Presidency acknowledged, several Member States have failed to inform their neighbors or the Commission of the new border controls they have adopted. Lack of prior consultation was also seen in instances of technical barriers put in place between borders at crossing points. (Id. ¶ 1.) The Presidency suggests that even in emergency situations that require immediate action, an EU Member that decides to re-introduce internal border controls should inform the neighboring states by giving them sufficient notice of pending plans and cooperating to mitigate any possible negative impact on those neighboring states. (Id.)
  • Securing External Borders. During the current crisis, a large number of migrants who entered or exited the EU went through the “green land borders,” that is, the land borders between border crossing points. Frontex, the European Union’s External Border Agency, has estimated that more than 1.5 million illegal border crossings took place from January to October 2015. (Id. ¶ 2; Origin, Frontex website (last visited Dec. 8, 2015).  In view of the November 2015 Council decision to deploy, in emergency cases, rapid border intervention teams (RABITS) and police forces to boost security screenings, the Presidency proposed that the EU take all necessary measures to prevent illegal crossings through the green land borders and to ensure that entry and exit is permitted only through the authorized crossing points. In addition, the Presidency recommended that Frontex deploy personnel in the northern borders of Greece to assist Greece and neighboring countries in imposing border controls. (Integrity of the Schengen Area, ¶ 2.)
  • Increasing Checks on Illegal Migration. The Presidency drew attention to the fact that during the current crisis, a number of illegal migrants entered the Schengen area without going through registration procedures. To solve this issue, the Presidency proposes that the EU and Member States make full use of existing databases to ensure that such migrants are found, registered, and their cases evaluated. (Id. ¶ 3.) The Schengen Information System (SIS II) is a database used by national security forces and the EU to exchange information alerts on individuals and objects. (Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the Establishment, Operation and Use of the Second Generation Schengen Information System (SIS II) (as amended), 2006 O.J. (L 381) 4, EUR-LEX.)  Another database available to national enforcement authorities is Eurodac, which is used to store and compare fingerprints of asylum seekers and of those who illegally cross the external borders. It is composed of a central unit within the European Commission, equipped with a database for comparing fingerprints and a system for electronic data transmission between EU countries and the database.  (Council Regulation (EC) No 2725/2000 of 11 December 2000 Concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 2000 O.J. (L 316) 1, EUR-LEX.)
  • Handling Problems Related to External Border Controls – Use of the Deficiency Clause. As the Presidency pointed out, under the Schengen Borders Code, any re-imposition of border controls cannot last more than six months. This period may be prolonged three times. If it lasts longer than that, then the Council, acting on a proposal by the Commission, must adopt a recommendation to deal with cases where exceptional circumstances exist that jeopardize the public policy or internal security of a Member State. (Integrity of the Schengen Area, ¶ 4.) In exceptional circumstances, the re-introduction of internal border controls can be extended up to a maximum of two years when the following criteria are met: (a) the overall functioning of the area without internal border controls is in jeopardy because of “persistent serious deficiencies relating to external border control,” and (b) the exceptional circumstances present a “serious threat to public policy or internal security” within the area without internal border controls. (Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 Amending Regulation (EC) No 562/2006 in Order to Provide for Common Rules on the Temporary Reintroduction of Border Control at Internal Borders in Exceptional Circumstances, 2013 O.J. (L 295) 1, arts. 19 & 26, EUR-LEX.)

Based on the above points, the Presidency invited the Commission to consider the possibility of presenting a proposal for a Council Recommendation concerning any situation in which one or more EU Member States reintroduce border controls on all or specific parts of their borders within the EU.  In addition, it recommended that all measures be taken to reinforce the external borders of the EU.  (Id.)