On 6 April, the French Presidency of the Council of the EU continued work on the reform of the Schengen Borders Code and presented a new compromise proposal aimed in particular at bringing positions closer together on the definition of the instrumentalisation of migrants, on the possibilities of returning migrants between Member States in the context of joint police patrols (Article 23-a), and on the categories of persons who can be excluded from health restrictions linked to pandemics in the context of non-essential travel to the EU.
Its goal is to get a first agreement by the end of its mandate, and new working groups with new compromises will be set up in early May, especially after an expected judgment from the Court of Justice of the EU on free movement and internal border controls on 26 April.
Recently, several delegations expressed dissatisfaction with both the definition of instrumentalisation and the so-called Article 23-a. On the first point, the French Presidency, in its compromise of 1 April, proposed to define instrumentalisation as, among other things, bringing migration into the EU rather than illegal immigration.
As regards the fact that this instrumentalisation comes from a State or non-State actor, a clarification is also made in the margin to indicate that NGOs operating in the humanitarian field and taking charge of migrants should not be considered as carrying out an instrumentalisation. Trafficking in human beings and criminal networks should also not be covered by this definition of instrumentalisation.
On the subject of physical barriers requested by several States, the Presidency stuck to its guns, maintaining only the possibility of stationary or mobile infrastructures to defend the EU’s external border. According to one source, Denmark expressed its dissatisfaction and insisted that a clearer reference to physical barriers (anti-migrant walls) be retained. However, the French Presidency held to its position and that of the European Commission, which is opposed to any funding of anti-migrant walls.
This definition of instrumentalisation could be agreed upon, but several countries believe it would not add any real value compared to today. The Member States could therefore have to be satisfied with this without being completely convinced.
On Article 23-a, the French Presidency, according to this text of 1 April, has lightened the condition of a joint police patrol between two Member States in order to make it possible to return irregular migrants to the neighbouring country. This precondition of joint patrols was problematic for some countries, who felt that it could make current practices more cumbersome. The compromise therefore now refers to possible returns of migrants in the context of police controls based on a bilateral cooperation framework, including joint patrols. This wording is potentially sufficiently vague not to add additional requirements for Member States wishing to carry out such controls.
Here again, some countries reportedly doubt the real added value of this Article 23-a, aimed essentially at secondary movements, compared to what is already being done, but others have maintained their criticism.
Spain has reportedly requested the deletion of Article 23-a, which the Spanish Permanent Representation in Brussels has not been willing to confirm. For Madrid, the reform of the Schengen Code should essentially aim to limit the use of internal border controls and preserve the proportionality of any use of internal border controls, a spokeswoman said.
Hungary, for its part, reportedly considered this formulation not necessarily satisfactory, wishing that these returns of migrants (notably to its territory) be made with the prior condition of a joint patrol.
Another change is that with regard to travel restrictions to the EU in times of pandemic, the reform provides for the European Commission to propose an implementing regulation to ensure that all Member States apply the same policy towards third countries.
On this point, the Presidency has deleted the whole list of categories of essential travellers that can be excluded from these health restrictions, preferring to have these categories defined when drafting the much-discussed regulation.
A choice that is appreciated differently by some delegations who would have liked to have visibility on these crisis situations and to know in advance which types of workers can be exempted from restrictions.
The compromise also highlights the various situations in which a country may impose additional health restrictions on such travellers.
Work is expected to resume after the judgment from the Court of Justice of the EU, expected on 26 April, concerning an Austrian court’s request for a cumulative extension of internal border controls.
A judgment that could confirm the wide margin of manoeuvre that Member States already have today to reintroduce internal border controls.
Link to the compromise: https://aeur.eu/f/18y (Original version in French by Solenn Paulic)