Several NGOs have painted a frightening picture of the results of the negotiations between the European Parliament and the Council on the Schengen Border Code (SBC), urging rejection.
Clearly, these results are not 100% what the Parliament wanted, but the main objective of clarifying and strengthening the framework provided for the reintroduction and extension of internal border controls in the area of free movement has been achieved.
Today, the SBC is being criticised for harmful measures that the reform does not actually introduce, while being very lenient about those contained in the Asylum and Migration Pact.
Faced with this slight confusion, here are a few arguments, based on the criticisms levelled by the NGOs.
Police checks to prevent irregular migration
The possibility of carrying out such checks has not been introduced by this revision of the Schengen borders code. Those who have followed the evolution of Member States' practice in relation to Schengen will know that the practice of introducing border controls linked to irregular migration has been common since 2015 and has not been considered illegal before or since then. The European Commission has not raised any infringement proceedings.
The reform of the SBC provides a clearer framework and very explicit time limits for the use of these controls.
Racial profiling
Nothing has been added to the SBC that allows or encourages racial profiling! On the contrary, the recitals added at Parliament's request confirm that the measures taken by the Member States to implement the Code must be carried out in full compliance with the principle of non-discrimination. These recitals should be read in conjunction with Articles 3 and 4 of the Schengen Borders Code on the scope and fundamental rights, which remain in the Code and have not been amended.
Article 23a
This point has been discussed on many occasions, and I eliminated it from my report. But in order to find a majority in Parliament, it was necessary to agree on such an article. The procedure defined is based on existing practices for the return of irregular third country nationals between a number of Member States.
In addition, many of the safeguards contained in the article have been introduced and strengthened at my request. In particular, the Commission's proposal and the Council's mandate aimed to revise the Return Directive to allow new bilateral agreements to be concluded. This amendment to the Return Directive was abandoned at Parliament's insistence. No new bilateral agreements are authorised.
Furthermore, the text explicitly states in the article that applicants for international protection cannot be subject to the procedure. The law could not be clearer on this point. As the adopted text makes clear, there are different rules for asylum seekers, which are set out in EU asylum rules and not in the SBC.
In addition, this provision requires the two Member States concerned to agree to the use of the procedure and to ensure that it can be applied. There is no obligation to use the procedures and, moreover, the provisions of Article 23a(3a) require the Member States concerned to lay down arrangements "to avoid recourse to the procedure".
Finally, the text adopted provides for an explicit right of appeal and the obligation for the two Member States concerned to comply with the best interests of the child.
Instrumentalisation
The reform of the SBC does not introduce any new provisions on instrumentalisation, a concept introduced instead in the text on Crisis situations and force majeure. In fact, thanks to Parliament's insistence, the SBC contains only one provision involving the concept of instrumentalisation, and this provision introduces guarantees concerning what Member States may not do in situations of instrumentalisation, namely that not all border crossing points may be closed and that Member States are obliged to respect the rights of persons seeking protection. In this sense, the reform is a safeguard, not a step backwards.
Surveillance and Monitoring
There is nothing new in the SBC which provides for increased surveillance. The text repeats the already-existing notion that the exercise by Member States of public powers within their territories is not governed by the Schengen Borders Code. Member States might use surveillance in that context but if they do it is not because of the Schengen Borders Code, which is not the defining law on this issue.
There is no new possibility for Member States to use surveillance technology and it is simply wrong to suggest that the Schengen Borders Code is or will be somehow responsible for the increased use of such technology. In so far as border surveillance methods might develop, the Commission is empowered to adopt a delegated act on standards for such surveillance. This delegated act would allow the Parliament to object to any such standards if it feels they infringe on fundamental rights.
With this reform of the rules on Schengen area, we have tried to provide a tighter legal framework for Member States to ensure that they respect the provisions of the Treaty regarding the right of persons, whatever their nationality, to cross the internal borders without a border check, and that - unlike at present - internal border controls will be limited both in scope and in time.
Sylvie Guillaume is a French Member of the European Parliament, member of the S&D party, and rapporteur for the reform of the Schengen Borders Code.