From the DW:
“Border checks in EU countries
challenge Schengen Agreement”
As large numbers of displaced
people arrived in 2015, some Schengen countries reintroduced border checks. Six
are extending controls. That's illegal, EU observers say, and it undermines the
idea of freedom of movement. People and goods can move relatively freely across
the internal borders of the 26-nation Schengen Area. The idea is that the
agreement — to which 22 EU countries as well as Iceland, Liechtenstein, Norway
and Switzerland are party — will boost domestic economies and facilitate human
mobility in a way that few parts of the world permit.
Border controls used to be
reserved for foreseeable events
Clear rules regulate when and how
a Schengen country can temporarily reintroduce checks at its borders. Until
recently, these reintroductions were few and far between, usually invoked for
foreseeable events, such as major sports competitions or political meetings:
Portugal conducted border checks for the 2010 NATO summit in Lisbon, for
example, and Denmark did it during the 2009 UN Climate Change Conference in
Copenhagen. One announcement by Iceland lists "Participation of MC Hells
Angels at the inauguration of the Icelandic Motorcycle club in Reykjavik"
as the reason for two days of checks in Iceland in 2007. These kinds of
controls last only a few days and are planned far ahead of time. But,
"since September 2015, some countries have started using every legal
possibility in the Schengen code to extend border controls," said Yves
Pascouau, a senior adviser at the Brussels-based think tank the European Policy
Centre (EPC) who holds a doctorate in EU migration policy law. "This is
unprecedented." When increasing numbers of refugees started arriving in
the European Union in 2015, Austria, Germany, Slovenia and Hungary quickly
reintroduced controls, citing a "continuous big influx of persons seeking
international protection." This was the first time that migration had been
mentioned as a reason for reintroducing border controls. Soon after, six
Schengen members reintroduced controls for extended periods. Austria, Germany,
Denmark, Sweden and Norway cited migration as a reason. France, as the sixth
country, first introduced border checks after the November 2015 attacks in
Paris, citing terrorist threats. Now, four years later, all six countries still
have controls in place. On November 13, they are scheduled to extend them for
another six months. "From 2015 to 2017, there was a legal ground for these
controls," Pascouau said, "but since then they have been
unfounded."
The maximum limit
Article 29 of the Schengen
Borders Code permits controls beyond six months when "the overall
functioning of the area without internal border control is put at risk as a
result of persistent serious deficiencies relating to external border
control." Meant as a last resort — when a country at the edge of the
Schengen Area can't protect its external borders, for example — Article 29
allows member states to reintroduce controls for up to six months at a time,
with extensions "no more than three times for a further period of up to
six months." That would add up to a maximum total duration of two years.
The current controls have been in place for four years. This does not
necessarily mean that police check the passport of every person crossing the
border. In Germany, for example, only a few crossings with Austria are monitored,
and controls around the other borders are carried out more intensively. The
Swedish government stopped systematically checking every person crossing the
border with Denmark in 2017, switching to targeted controls and automated
surveillance systems instead.
Article 29 requires EU
recommendation
There's a specific procedure for
invoking Article 29: Member states have to petition EU institutions to
recommend border controls. The Council of the European Union, which consists of
ministers from each EU country, then issues this recommendation, and the
members follow it. That's exactly what happened on May 12, 2016, when the
Council recommended that Austria, Denmark, Germany, Sweden and Norway extend
their controls for six months. The reason for this was that investigators had
reported security deficiencies at the external Schengen border in Greece. A
catalog of measures to be implemented was issued to Greece to remedy the
situation. The Council issued such recommendations over the months that
followed until, in November 2017, they hit the maximum total duration of
controls possible under the current laws.
No EU intervention
The countries have repeatedly
extended the controls on the basis of national authority, citing the
"security situation in Europe and threats resulting from the continuous
significant secondary movements." France never received a recommendation from
the Council to reintroduce border checks, but has maintained them continuously,
citing a "persistent terrorist threat." "We are in an entirely
political situation now, not a legal one, and not one grounded in facts,"
the EPC's Pascouau said. "Either there would have to be a proper legal
assessment of the current situation, or the rules would have to be
modified." He said the European Commission or a member state could
theoretically investigate the controls and ask the European Court of Justice to
settle the matter. But that has not happened yet.
Extraordinary circumstances only
When asked to clarify the
legality of the current border checks, a representative from the European
Commission referred to Articles 25 and 26 of the Schengen Borders Code, but
didn't expand on how these apply. These two articles explain the basic
procedure for the reintroduction of border controls: under extraordinary
circumstances only, for a period of up to 30 days, extendable up to six months,
unless a situation as described in Article 29 takes place.
'A political decision'
On September 13, 2015, Germany
became the first country to reintroduce controls. Since 2006, the country has
had the most overall days with border checks of any Schengen member. A
representative from the Interior Ministry, which is responsible for the
controls, told DW that officials had determined that "the time limits laid
down in the Schengen Borders Code refer to each individual new order for the
temporary reintroduction of internal border controls." That would mean that
the time limits set in the Schengen laws would reset with every six-month
extension. Members of the European Parliament do not agree with this
interpretation. "We believe it is a political decision and not
legal," said MEP Tanja Fajon, who authored the Parliament's position
report on border controls. "The Schengen Border Code for us is clear.
There is an absolute upper limit of two years, to which you can only arrive at
after having a Schengen evaluation proving deficiencies putting the entire Schengen
Area at risk. No such conditions apply at the moment, and the period set in
Article 29 has expired."
An ideological issue
The European Parliament issued an
official condemnation of the controls in May 2018. Fajon, a Social Democrat who
represents Slovenia, said the checks became an ideological issue. "In the
past, any reintroduction of border controls was accompanied with specific
measures that needed to be implemented to ease the situation," she said.
"Those have all been complied with. We are now in a position to check
every person coming in, but the controls are still in place." She said the
impression in Parliament is that the European Commission doesn't want to take
the member states to court. "It is not in Germany's, France's or the
Commission's interest to change the status quo, as they can do what they want
and the Commission does not need to act against them," she said. Pascouau
agrees: "Politically, no one could even imagine that the Commission would
introduce any action against a country like Germany."
Germany defends policy
According to Germany's Interior
Ministry, the current border controls were ordered for reasons of
"migration and security policy." In response to an inquiry by
lawmakers from the Left party in June, the ministry cited the "still too
high" number of unauthorized entries into Germany, the number of smugglers
reported at the border with Austria, the number of asylum applications, and the
"considerable migration potential on the Eastern Mediterranean route"
as relevant factors. According to statistics from the federal police, the
number of people attempting to enter Germany has fallen to pre-2014 levels. Slightly
more than 30,000 illegal entries were registered in Germany in 2018 — below the
level of 2014 (37,700). The number of asylum applications registered by the
German Federal Office for Migration and Refugees have dropped similarly as
well, as has the number of smugglers as estimated by the federal police.
External borders fortified
Since 2015, a range of measures
have been implemented to fortify the EU's external borders: The European Border
and Coast Guard Agency, also known as Frontex, was established in 2016, the
bloc signed a refugee deal with Turkey in 2016 to take pressure off of Greece,
and smarter information systems, as well as other reinforcement and support
mechanisms, have been put in place on the Schengen perimeter. All of this has
caused a drop in illegal crossings at the EU's external borders as well. The
Eastern Mediterranean route, for example, which Germany had cited as a cause
for concern, saw 56,561 irregular crossings in 2018. That is a steep decline
from the peak of 800,000 in 2015, and more comparable to the levels seen in
2010 or 2011. Whether the current situation still warrants internal border
controls is a matter of political debate. But, no matter the stance, the
question of how the Schengen rules should move forward remains. There are
efforts to revise the rules in light of the challenges of the past years. In
September 2017, the European Commission proposed an amendment to the Schengen
Borders Code that would allow for, among other things, extending the maximum
possible duration of controls to three years. The European Parliament, in
contrast, voted to tighten the already-existing rules so that the absolute
maximum would be one year and any extension beyond six months would require
assessment by the Commission.
No agreement in sight
At the moment, it seems like
there is no common ground. "The negotiations have stalled," the MEP
Fajon said. "The new Commission might even withdraw the proposal on the
table, which we believe it would be a really bad sign. The future of the
Schengen Area is grim."
^ The European Union and other
European countries that are part of the Schengen Area (especially Germany) like
to go after places like the United States and our view that we need a barrier/wall
along the US-Mexico border while those same countries have themselves put
internal borders and barriers up from one Schengen country to another Schengen
country. That would be like having a border check between New York and Massachusetts
(in the US) or between Quebec and Ontario (in Canada.) The Schengen countries
have used internal border checks since 2015 and it is only recently that anyone
in the EU has really mentioned or questioned it. ^
https://www.dw.com/en/border-checks-in-eu-countries-challenge-schengen-agreement/a-51033603
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