The Schengen Agreement which introduced the abolition of border checks between its signatories has been the subject of much news lately because several participating countries are now paradoxically seeking to reinstate border controls.
Among signatories of the Schengen Agreement, Germany, Sweden, Austria, France, Denmark and Norway have already reintroduced temporary border checks. Many other countries have implemented stricter border checks without officially calling the measures ‘reintroduction of border controls’.
Temporary border controls are permitted under Article 23 of the Schengen Borders Code, which allows Member States to exceptionally reintroduce internal border controls as a last resort for a period of no more than 30 days where there is ‘a serious threat to public policy or internal security’, a period which can extended if the threat persists by periods of up to 30 day periods until a maximum of 6 months has been reached. Article 26 permits that period to be prolonged, no more than three times, for a further period of up to six months (ie an overall maximum of two years) if the exceptional circumstances persist.
On 12 February 2016, the European Council, consisting of the heads of government of the European Union Member States, adopted a recommendation on addressing serious deficiencies identified during an evaluation of Greece’s application of Schengen in the area of external border management (ie the external borders of Schengen – geographically Greece constitutes an external frontier of the Schengen Area). The recommendation proposed to Greece remedial action to address these deficiencies. The action recommended covers areas such as registration procedures, sea border surveillance, border check procedures, risk analyses, human resources and training, infrastructure and equipment and international cooperation. The recommendation moved forward a process that could ultimately see changes in the Schengen treaty. The recommendation followed the adoption 10 days earlier of the Schengen evaluation report on Greece by the European Commission. The Commission had submitted a recommendation to the Council to address serious deficiencies identified in the evaluation report on the application of Schengen rules in the field of management of the external borders by Greece. The Council’s recommendation gives Greece one month in which to establish an action plan to remedy the deficiencies identified in the evaluation report and 3 months in which to report on its implementation.
Greece strongly dissented from the evaluation report’s conclusions and opposed the recommendation. It did not accept that the findings of the evaluation constituted “serious deficiencies” or that Greece was “seriously neglecting its obligations”. It pointed out that it was being subjected to volumes of migration that would put the external border controls of any Member State under severe pressure and that it had taken a number of measures to deal with the situation at substantial national financial and social cost.
The recommendation is significant in that it prepares the ground for existing temporary border checks to be extended beyond May 2016, when they are due to expire. Should Greece fail to implement the required measures, the EU could give the green light to Schengen nations to maintain their own border controls for up to two years under Article 26 of the Schengen Borders Code. Despite Greece’s concerns, the Commission maintains that the move will not isolate Greece from the Schengen area or be about suspending Schengen, but will allow other countries to deal with the consequences of the problems Greece is having controlling its borders.
In times like these, when certain European countries are reportedly experiencing the biggest influx of refugees since the Second World War, some governments claim it is difficult to justify the maintenance of open internal borders to their citizens. However, the European Commission says that going back to internal border controls on a long-term basis is likely to cost €18 billion (roughly £14 billion) excluding any potential secondary effects and indirect costs which may be dramatically higher than the direct estimates. The French government think tank France Stratégie estimates this cost of reinstating border checks would be €110 billion (about £85 billion) by 2025, taking into account its impact on trade alone, a figure that would exceed the estimated trade benefits of the introduction of the euro. In addition to the enormous economic impact that this would have, there is also the devastating impact it would have on decades of European integration and political cooperation.
However, irrespective of the financial and social implications, there now appears to be a very real possibility that the reintroduction of internal border controls in the Schengen Area will be here for a prolonged period of time. The danger to the Schengen system is that once border controls have become reestablished, it may then be politically difficult to reverse this process and return to open borders.
