Leiden Law Blog

A not-so-temporary reinstatement of internal border controls?

Posted on by Jakub Jasiewicz in Public Law
A not-so-temporary reinstatement of internal border controls?

This blog is part of the project: Mobility and Security in Europe.

The borderless Schengen area allows individuals to travel freely, without the need to undergo controls when crossing borders between Member States. Nonetheless, Member States have always retained the power to temporarily reinstate internal border controls under the exceptional circumstances specified in the Schengen Borders Code, in particular for reasons of public policy and internal security. Since November 2015, following the refugee crisis and a number of terrorist attacks, the reinstatement of internal border controls seems to have become the rule rather than an exception in a number of Member States. Yet, the Schengen Borders Code places strict time limits on the reintroduction of border controls. Thus, the legal regime governing the reinstatement of controls at the internal borders appears ill-suited to accommodate the concerns of the Member States, whilst borderless travel is under increasing strain. In 2017, the European Commission published a proposal for an amendment to the Schengen Borders Code allowing Member States greater leeway to address threats to public  policy and national security. However, even if these amendments had been adopted in time, they would have done little more than codify an existing practice.

What is the current legal framework?

The SBC provides that any reintroduction of border control has to be a measure of last resort, and that it has to be both proportionate and necessary. There are two situations in which an exception to the abolition of internal border controls can be made. The first is envisaged in Articles 25 to 28, allowing for the reintroduction of border controls when there is a serious threat to public policy or internal security. This can be done (i) for a maximum period of six months (Article 25) in cases of foreseeable events (e.g. political events) or (ii) for a maximum period of two months (Article 28) in cases requiring immediate action. A second exception is found in Article 29 of the SBC. It allows the Council to issue a recommendation, based on a proposal of the Commission, that one or more Member States reinstate border controls. An Article 29 procedure can only be invoked in cases of serious deficiencies in the carrying out of external border controls which in themselves constitute a serious threat to public policy or internal security. Article 29 was introduced by the European legislator in 2013, following events in 2011. In the light of the Arab-Spring, Italy allowed large numbers of Tunisians arriving on its coasts to travel onwards by granting them a temporary residence permit. France reacted by reintroducing controls at its borders with Italy, (more on this topic can be read here).

How has the legal framework been used in the past?

Since 2006 internal border controls have been reinstated within the Schengen area ninety-eight times, and always for a limited period of time. This could be around major political or sports events, or for reasons of internal security, e.g. after the London bombings in 2008. However, as of November 2015, mainly in response to the uncontrolled nature of the influx of refugees, mostly from Syria, a number of Member States, including Germany, Austria, Sweden, Denmark and France, have reintroduced controls at (sections of) their internal borders, some of which remain in place until this very day.

In October 2015 several Member States relied on Article 25 SBC and the public policy exception in order to reinstate border controls. One of these Member States was Germany which informed the Council that because of ‘the big influx of persons seeking international protection’ they wish to have controls at their internal borders reinstated for a period of six months. That reintroduction was subject to a Commission opinion as to whether the reinstatement was both proportionate and necessary. In its opinion the Commission stated that migratory flows, even though they cannot per se pose a serious threat to public policy or internal security, in this particular case were held to be a justified ground for reinstatement and therefore proportionate and necessary. In paragraph 29 of the opinion, the Commission explained further that the number of persons arriving in the EU was extraordinary, that most of those persons had not been registered in another EU Member State, and therefore that such non-registration of individuals led to a security concern.

On 12 May 2017, a day prior to the expiry of the six-months period allowed by Article 25 of the Code, the Council issued a recommendation under Article 29 of the Code, in which it informed Germany, Austria, Denmark, Norway and Sweden that they could reinstate border controls for an additional period of six months. Such a recommendation could only be issued if persistent deficiencies existed at the external border of one of the Schengen States, as referred to in Article 21. The Council based its recommendation on the existence of serious and persistent deficiencies at the Greek external borders. This has been criticized, as arguably it was deficiencies in the Greek asylum system rather than their external border management that caused the continued refugee flows (see article by S. Peers).

Following the first recommendation, the Council subsequently extended the initial reinstatement under Article 29 three times. By doing so, it allowed Germany, Austria, Denmark, Norway and Sweden to maintain internal border controls for the maximum period of time allowed under that article, up until 11 November 2017 (2 years). After that date, the only possibility to further prolong internal border controls was to resort back to Article 25. Article 29, in paragraph 5, provides that it can be applied cumulatively to Article 25, as the Articles address different rationales for reinstating internal border controls: Article 25 on the basis of a threat to public policy or internal security; Article 29 on the basis of a similar threat but caused by serious deficiencies in the external border management of another Member State.

What is the situation right now?

Indeed, when the two-year period under Article 29 ended, on 12 November 2017, Germany, Austria, Denmark, Norway and Sweden once more turned to Article 25 to justify the reintroduction of border controls. Their main argument? The ‘security situation in Europe and threats resulting from the continuous significant secondary movements’. At the same time, France, also relying on Article 25, made reference to a ‘persistent terrorist threat’ as a reason for further prolongation of border controls. Although, very generally phrased, these reasons could qualify as threats to public policy or internal security. Importantly, the Commission has at no point questioned the validity of these grounds.

Therefore, assuming that the serious threat to public policy or national security continues to exist, another problem arises. Article 25 does not allow for a prolongation beyond the six months’ time period set out in that Article and this period expired as of 12 May 2018, rendering continued controls contrary to the letter of the Schengen Borders Code. Still, according to the Commission’s overview of notifications made by Member States pursuant to Article 25 SBC, the five Member States (Austria, Germany, Denmark, Norway and Sweden) have once again reinstated internal border controls until 11 November 2018. The reason put forward in order to justify such prolongation is (again) ‘security situation in Europe and threats resulting from the continuous significant secondary movements’.

The legality and legitimacy of this last reinstatement of border controls is questionable. Allowing Member States to rely on Article 25 more than once in a row is against the wording of the Article and potentially creates the possibility for an unlimited reinstatement of border controls. It remains to be seen what the reaction of the Union institutions and the public is going to be. The Commission could decide to issue an opinion based on Article 25(4) SBC concerning proportionality and necessity of this reinstatement, or it could initiate an Article 258 TFEU procedure for failure to fulfill obligations under the Treaties. Finally, the Commission could, as an alternative to the use of Article 25, make a proposal under an Article 29 SBC procedure. It is, however, doubtful if this Article could once more be invoked in the absence of serious deficiencies in the controls at the external borders of the Member States. Finally, it cannot be excluded that individuals will challenge the internal border controls before a national judge, using the direct effect and primacy of EU law to challenge the controls.

The proposal of the Commission

Had the Commission’s proposal already been adopted, it would have been possible to remedy the situation. In fact, the Commission submits that its proposal responds to ‘identified shortcomings in the existing rules as regards persistent threats to public policy and internal security’, including cross-border terrorist threats and secondary movements of irregular migrants. Importantly, the proposal addresses these shortcomings by proposing to extend the time periods for which internal border controls may be reintroduced for reasons of public policy and internal security. 

The proposal extends the initial time period of six months under Article 25 up to one year. Under a new Article 27a, the Member States may further prolong internal border controls for a period of six months, renewable three times, if the serious threat for which borders were introduced under Article 25 continues to exist after that year and if commensurate exceptional national measures are taken within the territory of that Member State to address this threat (e.g. state of emergency). Finally, under the new proposal any reinstatement and subsequent prolongation would be subject to tougher procedural requirements. For instance, Member States would have to assess retrospectively how the previous reintroduction of border controls remedied the identified threat to prolonging them.

When looking at the proposal, it is evident that the Commission creates the possibility of having border controls reinstated for a longer period of time. Such a possibility, taken together with the practice of Member States to juggle between Articles 25 and 29 as well as with the lack of actual control by the Commission (and eventually by the Court of Justice of the EU) of the compliance by Schengen States with proportionality and necessity requirements, creates the danger of creating a de facto return of permanent controls at the internal borders.

Nevertheless, it is not all negative.

First, it cannot be denied that public order and internal security problems have plagued the Member States for extended periods of time, going well beyond those currently foreseen in the Schengen Borders Code.

Second, the Commission places much emphasis in its proposal on alternative, less far-reaching measures that will need to be considered before reintroducing internal border controls. In that regard, it suggests either the use of modern technologies to monitor traffic flows or the use of police checks as provided in its Recommendation of 12 May 2017. Currently, however, we see that the two measures are often combined, with the exception perhaps of the Netherlands (see article by M. van der Woude).

Finally, the proposal does not only allow for extended reinstatements of internal border controls, but ‘in return’ imposes stricter procedural requirements to be complied with.

The proposal should therefore be seen as a genuine attempt to try and resolve the problems of persisting serious threats to public policy or internal security. At the same time, one cannot escape the impression that, in the words of the European Parliament’s LIBE Committee (draft report), the proposal ‘was made to legalise existing practices of Member States which are not anymore in line with the current provisions of the SBC’. For now, the proposal remains under negotiation, whilst internal border controls remain in place, stretching the use of Article 25 beyond its wording. It is uncertain who will now move first to remedy this situation: the Commission, the EU legislator, the Member States themselves or private parties? What is clear, however, is that the internal borders are an area of continued tension between mobility and security at Europe’s internal borders. 

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