On Tuesday 19 June, representatives from the member states managed to reach an agreement on a negotiating mandate for reforming the Schengen Border Code, proposed last September by the European Commission at the request of certain countries, particularly by France and Germany.
The text approved and prepared by the Bulgarian Presidency sought to provide some clarity between the different articles in the Schengen Code that allow for the reintroduction of controls, for example, in the event of predicted events, such as international demonstrations. It is, however, expected to provide the member states with greater room for manoeuvre when very serious and persistent threats are involved. Some member states requested that they be allowed to reintroduce internal controls for up to four years.
Last September, the Commission was suggesting three years, which would include an exceptional extension of up to two years, in addition to the controls included in article 25 of the Border Code, which could go up to one year.
The text approved on Tuesday reduces the scope and concludes that the total period of reintroducing internal border controls in response to serious threats on member state their territory, such as terrorism, cannot be extended in total to over a year, as opposed to the three years envisaged by the Commission.
The Bulgarian compromise on this article 25 already provides provisions for authorising controls on the basis of security threats. The compromise proposed therefore suggests reasserting the reasons contained in article 25 for another period which cannot “exceed one year” in total.
The compromise adopted no longer includes a recommendation from the Council for authorising these controls but it does create new safeguards. The Commission would therefore be more involved and after six months of internal controls would be requested to issue an opinion.
According to the compromise, the states affected by these controls could also issue an opinion in the event of an extension, after six months. Member States that so wish would also be able to re-establish internal controls but would also have to present a risk assessment to their partners justifying the controls or their prolongation.
This draft reform experienced difficult beginnings and received rather negative criticism from certain EU member states, particularly the Baltic states but also countries such as Slovenia and all the countries that would like to establish links with the Dublin regulation. One source commented that it did in fact receive “broad support” on Tuesday.
Currently, five member states are carrying out this kind of control (France, Germany, Denmark, Sweden and Austria - Norway is doing so too). The idea of reforming the code was put forward after the terrorist attacks but also following the migration crisis that had witnessed some countries significantly increasing the use of certain articles in the Schengen code in order to extend these controls in relation to migration issues.
In this regard, they used article 26 (which became article 29 on external border failures), then more recently article 25, when they had exhausted the possibilities provided by article 29, which, it should be recalled, allows for six months controls that can be renewed up to a maximum of two years when the Schengen area is at risk- particularly when migration risks are involved. This article 29 was not amended by the reform. (Original version in French by Solenn Paulic)