The Secretariat-General of the Council of the EU has compiled, in a note dated 8 February, the first comments of the Member States on the reform of the Schengen Borders Code presented by the European Commission on 14 December (see EUROPE 12853/1).
Several countries have expressed reservations about the definition of the instrumentalisation of migrants proposed in this new regulation, while other countries such as Denmark, Poland, Latvia, Slovakia and Bulgaria have wanted references to anti-migrant fences to be specifically included in the text, notably among the possible measures for carrying out external border surveillance. They also pleaded for European funding to support them.
In the autumn, 13 Member States asked the European Commission for the ability to finance physical border barriers from the European budget and had hoped that the reform of the Schengen Borders Code would provide a legal framework for this. The European Commission refused.
According to the note, Bulgaria is proposing an amendment to the definition of surveillance “which may also be carried out by technical means, including physical barriers, electronic means, surveillance equipment and systems”.
Denmark, for its part, reiterates its request for European financial support for this type of measure.
These additions are proposed in Articles 2 and 13, which deal with, among other things, the means of surveillance and the definition of the instrumentalisation of migrants. On this last point, Poland also asks that “not obstructing” the movement of irregular migrants be included in the definition of instrumentalisation.
Cyprus, for its part, wishes to add to this definition the facilitation of such irregular flows “by deliberately avoiding the exercise of the necessary control or by showing negligence with regard to the movement of third country nationals”.
Do not aggravate the situation of instrumentalised migrants
On the subject of instrumentalisation, Luxembourg considers “it appropriate to rework the definition to ensure greater transparency and predictability regarding the triggering of the proposed measures both in the Schengen acquis and in the asylum acquis”. “The procedure of identification is not included in this Schengen text, but is mentioned in a vague way”, says Luxembourg.
This Member State also considers that the definition of instrumentalisation goes too far when it refers to destabilising actions that may “endanger the essential functions of the State, including its territorial integrity”. This notion of territorial integrity “goes too far for a JHA instrument”, according to Luxembourg.
For the Schengen context and asylum, “it would be preferable to keep language that does not mix things up with crises that are not migratory in nature. The measures that result from the instrumentalisation of migration can have serious consequences for asylum seekers, who are in turn instrumentalised. It is important not to create preconceptions”, warns Luxembourg.
Germany, for its part, asked for more precision on the link between the definition of the Schengen Code and the new regulation on instrumentality, also proposed on 14 December. For Berlin, the term irregular ‘flows’ is too vague. “What is the minimum number of people required to be able to define a flow”, says the German government.
The application for international protection must not in any way “be affected. With the envisaged restrictions, access to international protection and the prohibition of pushback must be preserved without restriction. One wonders whether this is already sufficiently expressed”, Berlin also criticises.
Belgium, on the other hand, calls for a broadening of this definition so that other types of situations can be covered by these cases of instrumentalisation in the future. Other countries are concerned that the definition of instrumentality is based, for example, on notions of intent or “active encouragement” of irregular arrivals, which may be difficult to prove, says Bulgaria.
Proposals to better coordinate decisions on travel to the EU in times of pandemic were also welcomed, although several Member States wished to clarify which categories of essential workers are therefore not subject to the same restrictions as other citizens.
Link to the document: https://aeur.eu/f/az (Original version in French by Solenn Paulic)