Schengen: a visible success to be promoted
There are a billion reasons to maintain the Schengen zone as a space of freedom of movement.
The Schengen zone is for European citizens one of the strongest visible symbols of the EU common project, entailing more than a billon journeys within the EU every year. Schengen means not only the abolition of controls at internal borders and common rules on the management of external borders but also a common visa policy, police and judicial cooperation, common rules on the return of irregular migrants and the establishment of common data-bases such as the Schengen Information System (SIS).
The reintroduction of internal border controls for a limited period of time is foreseen by Article 23 of the Schengen Borders Code where there is a serious threat to its public policy and internal security while at the same time respecting all the procedural safeguards set out in the Code. This practice has been carried out in various instances during previous years, related to events such as international summits (NATO, G8 or World Economic Forum on Europe and Central Asia), sport championships or others (e.g. the wedding of Prince Felipe of Spain). The system worked out quite well over many years, with no abusive State measures, as stated by Commissioner Malmström in her answer to a parliamentary question this February.
The decision of the Italian authorities to issue Schengen travel permits to thousands of Tunisians (and Libyans) going to France in springtime was the starting point of the current crisis. Their bilateral relations had been previously damaged by their different perspectives on the Libyan intervention and the measures taken by French business companies over leading Italian ones (LVHM over Bulgari, and Lactalis over Parmalat). The Danish decision to reintroduce border controls with Sweden and Germany (ended after its national elections in September) worsened the situation.
The proposal of the European Commission to solve those tensions is controversial for many Member States: instead of contributing to a better understanding among Member States and creating a framework to improve their mutual trust and maintain the current intergovernmental system, its two legislative proposals launched on the 16 September 2011 aim instead to transfer the power of Member States to the European Commission. In the new framework the reintroduction of internal border controls would be a State competence only for unforeseen emergencies requiring immediate action, and just for a period not exceeding 5 days. The rules in force allow national authorities to reintroduce border controls in case of a serious threat to public policy or internal security. This EU approach, in the Commission’s view, is justified in order to protect the free movement of persons. Moreover, the second proposed measure empowers the Commission with the evaluation and monitoring over the implementation by Member States of the Schengen rules, replacing the current peer-to-peer system. The European Parliament supported this view in its Resolution of 7 July, proposing also the possibility of sanctions when deficiencies persist and jeopardise the overall security of the Schengen area.
Two serious obstacles (legal and practical) stand in the way of the Commission’s proposals: the maintenance of law and order and the safeguarding of internal security and national security are under the Member States’ competence in accordance with Articles 4 (2) TEU and 72 TFEU. A further practical argument suggested is that, by reason of their direct and continuous contact with the situation in their countries, national authorities are in a better position than the Commission to assess the circumstances and the necessity for any restriction.
The fact that Finland and The Netherlands vetoed Bulgarian and Romanian access into the Schengen space has added more tension. According to the European Commission and the Parliament, both countries fulfil the technical requirements for joining the Schengen system, and the Presidents of both EU institutions considered it a matter of fairness to accept them into the free travel zone.
Member States should not use Schengen unduly as an instrument for solving certain particular domestic problems, or as a response to bilateral tensions. The undesirable consequences are not beneficial to EU citizens and the common good.
José Luis Bazán