According to the Schengen agreement, people and goods can freely cross the borders of the 26 signatory countries without any controls or requirements. Internal border controls within the Schengen area can only be reintroduced as a last resort in response to serious threats to internal security.
However, citing concerns about migration and/or terrorism, Germany, Austria, Norway, Sweden, Denmark and France have continuously enforced border controls since displaced persons began to flock to Europe in 2015. The countries have just completed controls for another six months.
This is the second extension since the European Court of Justice ruled in April that temporary reintroduction of border controls per announced threat should not last longer than six months.
A 2019 TBEN analysis also found that these border controls violate the terms of the Schengen Agreement, which is considered binding law for the 22 EU countries that have signed it, as well as for Iceland, Liechtenstein, Norway and Switzerland.
‘Too politically sensitive’
It would normally be the role of the European Commission to admonish Member States for breaking EU law. Such infringement procedures can lead to heavy financial penalties. For example, in 2018, Spain had not yet fully implemented rules requiring all EU citizens to have access to reasonably priced bank accounts. The Commission ordered Spain to pay €50,000 every day until it could implement a compliant national law.
The Commission has not launched any infringement procedures against any of the Member States concerned for the continuation of border controls. “The issue is just too politically sensitive,” says Leon Züllig, research assistant at the Chair of Public Law, International Law and European Law at Justus Liebig University Giessen, who is writing his dissertation on the EU’s internal borders. “The member states and their interior ministries would be furious.”
The European Commission has not responded to requests for comment from TBEN. At a hearing with MEPs in January 2021, the Commission argued that changing the rules could be a better solution than launching infringement procedures. It cited Member States’ failure to comply with the rules as evidence that the rules themselves may not be sufficient.
The Commission’s recent report on the state of Schengen lists “lifting all lengthy internal border controls” as one of the priorities for 2023.
It seems that the Commission intends to convince Member States to voluntarily end controls through amendments to the Schengen Borders Code. A first draft of such a reform failed in 2017 because the Council of the European Union, a roundtable of relevant ministers from member governments, did not support it.
Proposed changes require massive scrutiny
The Commission’s latest proposal would introduce a series of changes to the rules for the Schengen area. In particular, it is intended to extend the range of “alternative measures”. that Member States can introduce instead of border controls. In consultation about the reformspecifically called on Member States to apply technologies currently only used at the external borders of the EU also within the Schengen area.
Such technologies include automatic surveillance and data collection by authorities, for example through analysis of Passenger Name Record and Advanced Passenger Information data. This amounts to what Leon Züllig calls an “invisibility” of border controls. “From a fundamental rights point of view, these measures are perhaps even more dangerous than a physical barrier,” he said, “because they ultimately rely on a kind of mass surveillance – including of EU citizens.”
These alternatives may also increase the risk of discrimination at the border. PICUM, an NGO dedicated to protecting the human rights of undocumented migrants, expressed concern that the proposal opens the door to ethnic profiling. The organization also refers to reports showing that surveillance technologies replicate and entrench prejudice against marginalized people.
The proposal is now before the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, which has just presented its draft report. The report proposes to delete some relevant parts of the proposal, warning that “allowing more controls that look and feel like border control is inconsistent with the aim of providing EU citizens with an area of freedom, security and justice without providing internal borders”.
Juan Fernando Lopez Aguilar, the chair of the commission, also told TBEN: “All technological developments must comply with the Charter of Fundamental Rights and the EU’s data and privacy standards, which are the highest in the world.” The European Parliament has criticized ongoing border controls in the past and has generally supported free movement over greater national security.
It remains to be seen whether those suggestions will in turn be taken up by the Commission and the EU Member States.
For now, border controls in the free movement area are now going into effect for the eighth consecutive year – with no consequences in sight.
Edited by: Milan Gagnon, Peter Hille, Gianna Grün
More data journalism by TBEN
Data, code and methodology behind this story