The French Presidency of the EU Council has introduced, in a compromise to be discussed with Member States on 23 May, several changes to the reform of the Schengen Borders Code organising the reintroduction of internal border controls and has strengthened the safeguards, with the possibility given more quickly to the Commission to address a recommendation to a Member State, if it doubts the validity of the continuation of internal border controls.
This option of issuing a recommendation with alternative measures to controls had been foreseen in December by the Commission in a new Article 28 which was supposed to coordinate the re-establishment of controls for a majority of countries (in the latest text ‘several countries’, editor's note) affected by a single threat, such as a pandemic.
The Presidency now introduces, in a new Article 27-a, this recommendation to a Member State which has clearly not fully justified the need to continue control measures.
Proportionality Notice
In general, a Member State facing a foreseeable threat will still be able to extend controls for six-month periods, but the Commission’s opinion on the proportionality of the renewal of the measures will be mandatory after 12 months and not 18 as foreseen in the Commission text.
And if a Member State considers that there are major exceptional situations justifying the maintenance of internal border controls for a period of more than 2 years, additional safeguards should be laid down in terms of risk assessment and, where appropriate, the notification (of controls) should include a presentation of the means, actions, conditions and deadlines envisaged for the lifting of internal border controls, the text says.
“The Commission should issue a new follow-up opinion. Where this opinion expresses doubts as to the necessity and proportionality of the extension, the Commission should adopt, without undue delay, a recommendation to the Member State concerned, identifying the means, actions, conditions and timeline for lifting internal border controls”.
On 26 April of this year, the Court of Justice of the EU ruled that Member States should better justify the extension of control measures and suggested that the Austrian practices in question were illegal. In particular, it had assessed the use by States of Article 25 of the Borders Code.
Where a Member State considers that there is a major exceptional situation with regard to a persistent threat justifying the maintenance of internal border controls beyond the maximum period referred to in Article 25 (of 6 months), the new text provides that this country shall notify the Commission and the other Member States of its intention to extend its controls “at the latest 4 weeks before the planned reintroduction” for a further period of up to 6 months.
The new notification will have to include a “risk assessment justifying the continued threat to public order or internal security, justifying that alternative measures to address the threat are considered or have proved ineffective at the time of notification or presenting the mitigating measures considered to accompany the controls”. The text adds that this notification may be accompanied by a presentation of the means, actions, conditions and deadlines envisaged for lifting internal border controls.
Within 3 months of this notification, the Commission will issue a new monitoring opinion. “Where this opinion expresses doubts as to the necessity and proportionality of the extension, the Commission should adopt, without undue delay, a recommendation to be addressed to the Member State concerned, identifying means, actions, conditions and a timeline with a view to lifting the internal border controls”.
Several Member States are opposed to the unlimited renewal of internal border controls, even though some countries have been exercising them since 2015, and may therefore not be satisfied with these additions.
Link to the text (in French): https://aeur.eu/f/1q7 (Original version in French by Solenn Paulic)