According to the Schengen Agreement, people and goods can freely cross the borders of the 26 signatory countries without any checks or requirements. Internal border controls within the Schengen area can only be reintroduced as a last resort in response to serious threats to internal security.
Citing concerns about migration and/or terrorism, Germany, Austria, Norway, Sweden, Denmark and France have kept border controls in place at all times since displaced people started arriving in Europe in growing numbers in 2015. Countries have just extended controls for another six months.
This is the second extension since the European Court of Justice ruled in April that temporary reintroductions of border controls cannot last longer than six months per announced threat.
A 2019 DW analysis had also found that these border controls violate the terms of the Schengen agreement, which is considered binding law for the 22 EU countries that signed it, as well as Iceland. Liechtenstein, Norway and Switzerland.
“Too politically sensitive”
It would generally be the role of the European Commission to reprimand member states for breaking EU laws. Such infringement procedures can lead to heavy financial penalties. In 2018, for example, Spain had not fully implemented rules requiring all EU citizens to have access to bank accounts at reasonable prices. The Commission ordered Spain pay €50,000 a day until he can implement a national law that complies with the rules.
The Commission has not launched infringement proceedings against any of the Member States concerned for continuing border controls. “The question is simply too politically sensitive,” said Leon Züllig, research assistant at the Chair of Public Law, International Law and European Law at the Justus Liebig University in Giessen, who is writing his thesis on internal borders. of the EU. “Member states and their interior ministries would be furious.
The European Commission did not respond to DW’s requests for comment. During a hearing with members of the European Parliament in January 2021, the Commission argued that adapting the rules could be a better solution than initiating infringement procedures. He cited the fact that member states had stopped complying with the rules as evidence that the rules themselves might be inadequate.
The recent Commission report on the state of Schengen lists “the lifting of all lasting internal border controls” among its priorities for 2023.
It seems that the Commission intends to try to convince Member States to stop controls voluntarily by modifying the Schengen Borders Code. A first draft of such a reform failed in 2017 because the Council of the European Union, a round table of relevant ministers from member governments, did not back it.
Proposed changes require mass surveillance
The Commission’s latest proposal would introduce a series of changes to the rules governing the Schengen area. It aims in particular to broaden the range of “alternative measures” that Member States can introduce instead of border controls. In the consultations on the reformMember States have specifically requested that technologies currently used only at the EU’s external borders also be applied in the Schengen area.
These technologies would include automatic surveillance and data collection by authorities through, for example, analysis of passenger name record data and advanced passenger information. This is in addition to what Leon Züllig calls an “invisibility” of border controls. “From a fundamental rights perspective, these measures are perhaps even more dangerous than a physical barrier,” he said, “because they ultimately rely on a kind of mass surveillance – including EU citizens”.
These alternatives could also increase the risk of discrimination at the border. PICUM, an NGO dedicated to safeguarding the human rights of undocumented migrants, has expressed concern that the proposal opens the door to racial profiling. The organization also refers to reports showing that surveillance technologies reproduce and enshrine biases against marginalized people.
The proposal now belongs to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, which has just presented its draft report. The report suggests deleting some relevant sections of the proposal, warning that “allowing more controls which will resemble border control does not correspond to the objective of providing EU citizens with an area of freedom, security and of justice without internal frontiers”.
Juan Fernando Lopez Aguilar, chairman of the committee, also told DW: “Any technological development must comply with the Charter of Fundamental Rights and EU data and privacy standards, which are the highest in the world. “. The European Parliament has criticized ongoing border controls in the past and generally supported free movement over increased national security.
It remains to be seen whether these suggestions, in turn, will be accepted by the Commission and EU member states.
For now though, border controls in the free movement area will now enter their eighth consecutive year – with no consequences in sight.
Editing: Milan Gagnon, Peter Hille, Gianna Grün
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