Brussels, 04/05/2011 (Agence Europe) - France will undoubtedly see this as an initial victory: the principle of reintroducing internal border controls in Schengen area countries in new circumstances. This is how it was framed by the Commission in its communication on “migration” on Wednesday 4 May. The commissioner for home affairs, Cecilia Malmström, however, called for additional caution on this subject and suggested that a definitively European mechanism should be used to activate these new controls.
The commissioner was visibly rather unenthusiastic about these new kinds of controls and on Wednesday she attached the same importance to solidarity from the EU27 with Libyan refugees, who are still living or arriving in areas of Malta and Italy. This solidarity could take the form of another contribution to resettling them in the EU if needs be and activating the 2001/55 directive on temporary protection, strengthening the EU's external borders through the Frontex agency or even, more importantly, establishing a single common asylum system by 2012.
Although the case for recasting Schengen was unambiguously posed, the Commission did not make any concrete progress in any area on this question. At the moment, a mechanism could be envisaged that would “enable the Union to manage different situations involving member states that failed to meet its obligation of controlling a section of its external border or when a given portion of this border is subject to intense and unexpected pressure due to external circumstances”. France had requested this reference with regard to a state failing to meet its obligations but also wanted a reference to mass immigration. The Commission has, for the time being, only decided on intense and unexpected pressure due to external circumstances.
The Commission has written that it is possible that establishing such a mechanism would be necessary. It said that this would help to decide at a European level what member states could exceptionally reintroduce internal border controls and for what duration. In a provisional version of the communication, the Commission mentioned a “Community mechanism” involving European decision-making. In the final text, the “Community” reference had been struck out but Commissioner Malmström, nevertheless, pointed out that the idea remained the same: the Commission's line is that a European level decision should be required for reintroducing new controls and that the Commission would also ideally play an important role in this mechanism.
The commissioner also indicated that this mechanism should be used as a last resort and in “really critical” situations, and should be used to reduce unilateral decision-making by individual member states. So far, under the existing safeguard clause, states can decide themselves whether to reintroduce controls and subsequently inform the Commission and their partners in this regard. Malmström also clearly indicated that so far, 25,000 Tunisians could not, “be described as exceptional circumstances” justifying the activation of new internal border controls. France and Italy will have to analyse this statement.
In an effort to avoid appearing partisan, the Commission also highlighted its role in evaluating the Schengen system and implementing the oft-mentioned “Schengen governance”. This new evaluation has already been the subject of proposals put on the Council table and for which the Commission has requested a greater say in monitoring the application of the Schengen acquis by member states, which until now have been evaluating themselves. This idea, however, failed to make much progress at the Council and the commissioner said that many states were against a European evaluation, although she herself was very much in support of this proposal. In the media, Nicolas Sarkozy has recently posed the question of who is actually governing Schengen today. The commissioner's sarcastic retort emphasised that it was the member states themselves and that she would be delighted if Sarkozy were in favour of greater European governance.
Malmström was also keen to point out that the principle of new internal border controls had been mooted but that it still needed to be defined, which effectively meant that they had not approved the idea. The commissioner added: “a lot of member states have contacted me to keep Schengen and a lot of member states do not want to change the rules”. In the meantime, France has welcomed the fact that the Commission met some of the Franco-Italian demands on 26 April and mentioned the idea of reintroducing internal border controls in these circumstances. France regards this as “a good basis on which to work”.
So far, the Commission has not provided any precise details but is expected to do so as soon as home affairs ministers have provided it with their positions on 12 May. In its communication, the Commission is so far only wishing to put forward “guidelines” for facilitating the interpretation and application of Schengen rules by the member states. The legal formula, contents, activation and guiding modalities for this “mechanism” are therefore expected to be at the heart of the ministerial discussions.
Luxembourg, however, regards the “Community” process in this domain as more than welcome and moreover, it is, according to the minister for immigration, Nicolas Schmit, unavoidable. Although Luxembourg admits that Schengen can now be adapted according to situations that had not been planned at its inception, the minister said: “I welcome the fact that Ms Malmström has demonstrated both a European and Community stance”. The minister, nevertheless, warned against any “renationalisation of the borders”. He said that the revision of the Schengen safeguard clause should not be used for “internal publicity use”, in an attempt to respond to populist sentiment.
The Greens/EFA Group at the EP welcomed the fact that the Commission had attempted to “defend the spirit of Schengen”. The Greens “had expressed significant concerns… and now welcome the attempts made this morning… to defend a European approach on border controls”, indicated the group. “We welcome the fact that the Commission had sought to evaluate, together with member states, the effectiveness of Schengen, rather than moving towards a dismantlement of this agreement”, explained Hélène Flautre. Nonetheless, the MEP did indicate that “it is more than doubtful that this attempt to locate the European response is enough to stem the flow of populist demands that certain member states would like to impose on European migration policies”.
The S&D Group also pointed out that the Commission had been right to attempt to avoid unilateral decisions being taken by member states. The group did say, however, that by mentioning an exemption mechanism to the Schengen rules, the Commission had sent out a message that was both confusing and worthless. (S.P./transl.fl)