Three news articles of particular importance to European citizens were published last month. Meeting in Council on 10 June, the European Home Affairs Ministers agreed on a general approach to the proposed regulation modifying the Schengen Code on border crossings by individuals (see EUROPE 12969/2). Then, on 13 June, the Court of Auditors of the EU published a special report entitled ‘Free movement in the EU during the Covid-19 pandemic’, which was highly critical of the member states, but also of the Commission (see EUROPE 12970/21). Finally, and public knowledge since the meeting of the Council of 29 June, Croatia is likely to join Schengen Zone on 1 January next year, or maybe even in the autumn (see EUROPE 12982/11).
Very different matters, at least on the surface, they need to be taken in context and unpicked.
Schengen Zone is currently made up of 26 countries, 22 of which are members of the European Union: Ireland declined to join (but may change its mind), while Bulgaria, Cyprus, Romania and – as we have just seen – Croatia wish to do so. It has four non-EU members: Iceland, Norway, Liechtenstein and Switzerland, plus, since Brexit, the entity of Gibraltar, subject to a permanent agreement.
The number of people who live and work in different member states has been put at 1.7 million, while 3.5 million people across the internal borders of the EU every day. In total, the benefits of the Schengen Zone are applicable to 420 million people, 150 million of whom live in border regions. The only model of its kind in the world, it was achieved in a process of stages.
In the early 1980s, the Europe of the citizens was a major theme which inspired a landmark document, the Adonnino report. The EEC applied to economic operators (workers, service providers, etc.), but citizens as such were still subject to controls on all the internal borders, which lent Europe an unfavourable image. Too many member states (led by the United Kingdom), however, were completely against the idea of watering down these controls, making a legislative act under Community law all but impossible.
Five countries located at the heart of Europe decided to move forward on their own: Germany, Belgium, France, Luxembourg and the Netherlands: the first agreements, concluded in 1985, were signed, along with the application agreement of 1990, in the tiny Luxembourg border town of Schengen, which thereby became a household name. In the mid-1990s, most of the land border control posts were decommissioned. This was one of very few cases of inter-governmental cooperation of a purely Community nature, but its success was such that Schengen was included in the Treaty of Amsterdam in 1997. The set of legislative provisions and decisions concerning this process are collectively known as the ‘Schengen acquis’.
The non-EU member countries, known as associated countries, can choose the measures they wish to apply, as long as these do not run counter to the general project; they participate in joint decisions with no voting rights. As for the members of the EU, each must follow a specific procedure. At the end of 2007, nine of the latest wave of new member states joined the Schengen Zone.
Over time, the Zone has grown more complicated. It must guarantee the security of its own borders. It now has its own information system (SIS), a database aiming to verify whether travellers from third countries present a risk. In 2008, this system was joined by the visa information system (VIS). The police forces must work together administratively. Assistance between Schengen states in matters of criminal justice is another requirement. Any state wishing to join the Zone must make preparations in areas such as visas, police cooperation, the management of the external borders, the SIS, the protection of personal data, etc. There are questionnaires to be filled in. Once this assessment has been positively concluded, the agreement of the European Parliament and of the Council is required. The shortcomings of their measures to fight corruption and organised crime have thus far played against Romania and Bulgaria. For Cyprus, the division of the island is also a decided disadvantage. The European Parliament supports the accession of all three.
In any event, the effectiveness of Schengen in its internal dimension expresses the ‘area of freedom, security and justice without internal frontiers, in which the free movement of persons is insured’ referred to in the TEU. As confirmed by numerous Eurobarometer surveys, the European Union is inextricably linked to the right to move freely from one country to another without having to present an identity document in the minds of the vast majority of European citizens.
In 2006, the first Community Code on the regime governing border crossings by individuals, known as the ‘Schengen border code’, was adopted by a regulation of the Parliament and the Council. Having been modified several times, it was replaced by a new regulation (‘Code of the Union’), which was adopted on 9 March 2016 and remains in force. In the meantime, in 2013, a regulation setting out an assessment and control mechanism to verify the application of the Schengen acquis was also adopted.
The 2016 regulation is significant because of the rules setting out the details of the controls on the external borders and the option for member states to reinstate controls on their internal borders (articles 25 to 30).
Whereas controls on the internal borders were brought back only briefly between 2006 and 2014 (between one and three times a year across the EU) and only following exceptional public events (such as sporting events to avoid incidents), a turning point came in the year 2015. That year was marked by a combination of the migration crisis and a wave of Islamic terrorist attacks from several countries. Because of this serious threat to public order or internal security, the above-mentioned report of the Court of Auditors states that the number of controls reintroduced rose to 15 a year between 2015 and 2019. Following the public health crisis, this number rose to 99 in 2020 and 51 in the first half of 2021, or a total of 228. Even so, in its 2022 Schengen report, the Commission estimates that there have been more than 280 such cases since 2015 (see EUROPE 12959/19), this despite the success of the European Covid certificate, which aims to smooth cross-border travel.
Schengen, once in rude health, fell ill seven years ago and has never quite bounced back.
A Commission communication of March 2016 – yes, that early – called for a return to the Schengen spirit, together with a roadmap to get the Zone back up and running by the end of the year (see EUROPE 11505/1), specifically by reinforcing the surveillance of the external borders. In September 2017, it proposed an amendment of the 2016 Code, with a focus on the rules applicable to the temporary reintroduction of controls on the internal borders (see EUROPE 11871/3). The maximum total duration of such reintroductions went from two years to three, although many member states called for four years. The procedures to reinstate them, meanwhile, were tightened up. This text never received the blessing of the Council and came in for criticism from the Parliament; the Commission decided in December 2021 to take it off the table. (To be continued)
Renaud Denuit