The period from 2016 to 2021 was dominated by the use that was made of many recommendations, particularly during the pandemic; these recommendations were improperly applied by the very governments that had voted for them. The Commission adopted a practical handbook for border guards in 2019, proposed guidelines and set up a high-level ‘Schengen Forum’, which met for the first time on 20 November 2020.
The institution came in for criticism from the Parliament and academic circles for failing to launch any infringement procedures against member states in breach of the 2016 regulation. This criticism was reasonable in situations of serious threats to public order or security, but more questionable in the framework of the pandemic, a situation for which the regulation had made no provision. The Commission defended its corner, arguing that the rapid development of events was incompatible with the amount of time taken for the processes leading up to a Court of Justice judgment. In any event, the Commission proved to be administratively under-equipped to tackle member states that were ‘juggling’ the potential force o the various relevant articles of the regulation to extend controls while failing to seriously respect the notification, justification or evaluation procedures. The Commission played the card of cooperation rather than that of constraint – and we saw how that worked out for it.
The European Parliament, on the other hand, has expressed its dissatisfaction with the situation on a number of occasions, in particular a resolution dated 8 July 2021 highlighting the legal gaps in the instrument to assess the functioning of Schengen and calling once again on the member states to lift their controls on the external borders (see EUROPE 12758/8).
On 2 June 2021, the Commission made an attempt to bring the situation back under control by adopting a ‘Schengen Strategy’ (see EUROPE 12731/1, 12732/7), featuring a proposed regulation of the Council on the assessment mechanisms (modifying the 2013 regulation) and, in the future, an update of the practical handbook for border guards and a legislative proposal to reform the Schengen Code itself. The new ‘evaluations’ regulation was adopted without a struggle (see EUROPE 12940/25) and published in the Official Journal on 15 June of this year. The Parliament had only a consultative role, but proposed amendments (resolution of 7 April 2022). From this procedure, it emerged that the MEPs are in favour of surprise visits from the Commission services on the ground, but the governments have steadfastly refused to pass this (see EUROPE 12912/29, 12928/14).
The proposed regulation of the Parliament and of the Council, modifying the Code 2016, was presented on 14 December (see EUROPE 12853/1), at the same time as another, more specific one on the instrumentalisation of refugees, following large-scale manoeuvres carried out by the government of Belarus, which left feelings running high (see EUROPE 12851/1). It would appear that the fate of this text is linked to progress on the ‘Migration’ package.
Work on the Code got underway at the Council in December and concluded with the general approach of June 2022 referred to in yesterday’s instalment of this column. The text amends that of the Commission on several points and reflects the governments’ determination to take into account situations of public health crisis and refugee instrumentalisation and to ensure that they maintain leeway to bring back controls in the event of exceptionally serious and ongoing situations, whilst laying emphasis on bilateral cooperation. The European Parliament is lagging behind somewhat, with a report expected for the autumn. The negotiations are likely to be difficult, particularly as the Commission proposal left many MEPs disappointed.
Furthermore, a Schengen Council has been set up at ministerial level, by initiative of the French Presidency. It held its inaugural meeting on 3 March and is expected to be called upon to play a significant role.
On 27 April, the Court of Justice of the EU returned a landmark verdict (see EUROPE 12939/9). In September 2015, Austria brought back controls on its borders with Hungary and Slovenia, extending them successively over a period of several years. In 2019, a Slovenian national, NW, who wished to travel to Austria, refused to show a passport and was fined, a decision subsequently challenged by NW. Having had the case referred to it by the court of Styria, the Court found in favour of the plaintiff. It ruled that the maximum total duration of any reinstatement of controls on the grounds of a serious threat to public order or internal security could not exceed six months, other than in the event of a new threat, which was not the case here. As the requirement to present an identity document in 2019 was unfounded, the fine was unlawful. It is worthy of note that this violation of the Schengen Code ended up before the Court not because of the actions of the Commission, but those of an individual private citizen. NW thus joins hundreds of other ‘unsung heroes’ swelling European case-law with their non-violent resistance, to the benefit of everybody.
Let us conclude this overview by referring to three documents adopted by the Commission on 25 May of this year (see EUROPE 12959/19). The communication containing the 2022 report on the state of Schengen was a red-letter event: this was the first such report produced by the institution since 2015, even though it is required by the 2016 Code to publish one annually (article 33). It is developing means reinforce the governance of the Schengen Zone: bringing in an annual cycle and scoreboard, stepping up the work of the Schengen Forum and Council and exploiting all the potential of the new regulation on evaluations. The point on the internal borders is not well developed, highlighting the impact of Covid-19. The remainder concerns the available toolbox to make the external borders ever more secure. The other two documents are exclusively devoted to this objective, reaching a high, if not worrying level of technicality: the report on the application of the 2017 regulation on tackling terrorism and the multi-annual strategy for integrated border management with third countries, in application of the specific regulation of 2019.
Obviously, the events that have arisen since 2015, to which we can now add the war in Ukraine, have had a huge impact on the citizens’ security needs. It is possible that the regulation on the future Code will be more restrictive than the one used by the Court of Justice as the basis for its recent judgment. The home affairs ministers, who are all hands to the mast, will only be able to ease up on the interior of the Union in return for tightening up first access to its territory. The members of the European Parliament, on the other hand, are more sensitive to the free movement of citizens and their feeling of belonging to the EU.
Given the political agenda of the moment, Schengen, originally devised to smooth people’s passage within Europe, is being treated as if its first purpose is to discourage people from entering it in the first place.
Renaud Denuit