EU interior ministers approved a general approach on amendments to the Schengen Borders Code in Luxembourg on 10 June, paving the way for negotiations with the European Parliament, which has yet to take a position. This agreement had a “very large majority”, announced the French Minister of the Interior, Gérald Darmanin.
The French Presidency of the EU Council had held further consultations in recent days and provided final clarifications, notably on the modalities for extending internal border controls, and Germany, which had not yet adopted a position at the beginning of the week, was also able to decide in favour of the text on the eve of the meeting.
Presented last December, the reform is targeted at the phenomenon of the instrumentalisation of migrants, free movement in the EU in times of pandemic and cooperation between Member States on secondary movements of migrants. It also aims to create more safeguards and justifications for re-establishing and extending internal border controls, as some Member States have increased such measures since 2015 due to terrorism, migration and then the pandemic.
It is in fact this last aspect of internal border controls which has caused the latest difficulties, particularly after the EU Court of Justice ruling of 26 April, which more strictly framed the right of Member States to extend controls, even if their margin of flexibility is largely preserved.
Less freedom after controls that have already lasted two and a half years
The adopted reform provides for more structured notification procedures on this last point, with the possibility for the European Commission to issue an opinion on the proportionality of controls after 12 months.
If the need to maintain internal border controls is confirmed beyond a period of two years and six months, the Member State concerned will have to notify the Commission of its intention to further extend internal border controls, providing a justification and specifying the date on which it intends to lift the controls.
The Commission will then also issue a recommendation on this end date for controls and on the principles of necessity and proportionality to be taken into account by the Member State. The EU Council may also initiate a discussion within the Council in which the Member State concerned must explain why it considers the extension of controls necessary.
In all cases, alternative measures to border controls will be encouraged, for example for police checks in border regions of Member States.
The reform also introduced a new procedure for dealing with secondary movements. Under a bilateral cooperation framework based on voluntary action by the Member States concerned, it will be possible for a Member State to transfer third-country nationals apprehended in the border area to the neighbouring Member State from which they arrived. This cooperation may take the form of a joint police patrol.
On the instrumentalisation of migrants, the reform introduces a precise definition and identifies measures to reduce border crossing points or to monitor the external border, the idea of funding anti-migrant walls from the European budget having never been taken into account.
Finally, on external border measures in the event of a health crisis, the reform provides for the possible adoption of binding rules applicable to all Member States on temporary travel restrictions at external borders. Some categories of essential travellers will be exempted, but these will be decided on a case-by-case basis.
The ministers also adopted two other general approaches on Friday, on Prüm2 and the exchange of information, as well as a recommendation on police cooperation (see related article).
Link to the reform project: https://aeur.eu/f/21z (Original version in French by Solenn Paulic)