3 Schengen governance
| (a)
(33152)
14357/11
COM(11) 561
(b)
(33154)
14359/11
COM(11) 560
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Commission Communication: Schengen governance — strengthening the area without internal border control
Draft Regulation amending Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances
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| Legal base | (a) —
(b) Article 77(1) and (2) TFEU; co-decision; QMV
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| Document originated | (Both) 16 September 2011
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| Deposited in Parliament | (Both) 21 September 2011
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| Department | Home Office
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| Basis of consideration | EM of 11 October 2011
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| Previous Committee Report | None
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| Committee's assessment | Politically important
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| Committee's decision | (Both) For debate in European Committee B, along with the draft Council Decision on the application of the Schengen acquis in Bulgaria and Romania (33043) (referred for debate on 12 October 2011) and with the Commission's proposals for establishing a new Schengen evaluation mechanism (32216) and (33153) in chapter 2 of this Report
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Background
3.1 In 2006, Member States participating in the Schengen free
movement area adopted a Regulation (also referred to as the Schengen
Borders Code) which provides for the absence of any border checks
or controls on individuals crossing their internal air, sea or
land borders and establishes harmonised rules on the controls
to be carried out at their external borders.[16]
As the Regulation built on elements of the Schengen acquis
in which the UK does not participate, the UK did not take part
in its adoption and is not bound by it. The UK continues to exercise
border controls on any individuals seeking entry to the UK, whether
from another EU Member State or a third country.
3.2 Notwithstanding the absence of border controls
between Schengen States, the 2006 Regulation contemplates that
a Member State may, exceptionally, reintroduce controls at its
internal borders where there is "a serious threat to public
policy or internal security."[17]
The re-imposition of internal border controls must be "strictly
necessary" and for a limited period of no more than 30 days,
although that period may be extended. The decision to reintroduce
internal border controls within a Member State is taken by that
State alone. Where possible, it should give advance notice to
other Member States and the Commission and provide sufficient
information to demonstrate why renewed controls are needed, as
well as their intended scope and duration. However, if a Member
State considers that there is a need for urgent action, it may
re-introduce internal border controls immediately and then notify
other Member States and the Commission, setting out its reasons
for doing so. It should also inform the European Parliament of
the measures it has taken.
3.3 If a Member State decides to maintain internal
border controls for more than an initial 30 day period, it must
notify the other Member States and the Commission. Although a
decision to maintain controls must be renewed every 30 days, there
is no limit on the number of renewals. However, after the third
renewal, the Member State must (if requested to do so) report
to the European Parliament on the reasons justifying the maintenance
of internal border controls.
3.4 The procedures set out in the 2006 Regulation,
although far more detailed, are in keeping with the spirit of
the Schengen Convention which entered into force in March 1995.
Article 2 of the Convention provides as follows:
- that internal borders may be
crossed at any point without carrying out checks on persons;
- that, where public policy or national security
so require, a Contracting Party may, after consulting the other
Contracting Parties, decide that for a limited period national
border checks appropriate to the situation will be carried out
at internal borders; and
- that if public policy or national security require
immediate action, the Contracting Party concerned shall take the
necessary measures and inform the other Contracting Parties at
the earliest opportunity.
3.5 Schengen cooperation, based on the Schengen Convention
and related acquis, originally took place on an intergovernmental
basis but was brought within the legal and institutional framework
of the EU by the Amsterdam Treaty.
3.6 The Lisbon Treaty introduced a new provision
into the Treaty on European Union (TEU). Article 4(2) TEU requires
the Union to respect Member States' "essential State functions,
including ensuring the territorial integrity of the State, maintaining
law and order and safeguarding national security. In particular,
national security remains the sole responsibility of each Member
State."
3.7 Moreover, Article 72 of the Treaty on the Functioning
of the European Union (TFEU) re-iterates the principle previously
enshrined in the EC Treaty that EU justice and home affairs measures
"shall not affect the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order
and the safeguarding of internal security."
3.8 Some parts of the external border of the Schengen
free movement area have been subject to increased migratory pressures
in recent months, mainly as a result of political upheaval in
the southern Mediterranean. In its Communication on Migration,
published in May 2011, the Commission said that the governance
of the Schengen area needed to be strengthened in two ways in
order to tackle these pressures. First, there should an EU mechanism
for determining whether, and for how long, one or more Member
States may re-introduce internal border controls. The mechanism
should only be used as a last resort, either in response to unexpected
and heavy pressure at part of the external border or as a result
of shortcomings in a Member State's management of the external
border. Second, the existing intergovernmental system of peer
review in which Schengen States take the lead in determining whether
they are applying the Schengen acquis correctly (the so-called
Schengen evaluation mechanism) should be reformed.[18]
3.9 At its meeting in June 2011, the European Council
agreed Conclusions stating that:
"Political guidance and cooperation in the Schengen
area need to be further strengthened, enhancing mutual trust between
Member States, which are equally responsible for guaranteeing
that all Schengen rules are applied effectively in accordance
with the agreed common standards and with fundamental principles
and norms."[19]
3.10 The European Council called for a strengthening
of the existing Schengen evaluation mechanism and the introduction
of a mechanism capable of responding to exceptional circumstances
which jeopardise the overall functioning of Schengen cooperation.
It continued:
"It should comprise a series of measures to
be applied in a gradual, differentiated and coordinated manner
in order to assist a Member State facing heavy pressure at the
external borders. These could include inspection visits and technical
and financial support, as well as assistance, coordination and
intervention from Frontex.
"As a very last resort, in the framework of
this mechanism, a safeguard clause could be introduced to allow
the exceptional reintroduction of internal border controls in
a truly critical situation where a Member State is no longer able
to comply with its obligations under the Schengen rules. Such
a measure would be taken on the basis of specified objective criteria
and a common assessment, for a strictly limited scope and period
of time, taking into account the need to be able to react in urgent
cases. This will not affect the rights of persons entitled to
the freedom of movement under the Treaties."[20]
Document (a) — the Commission Communication
3.11 In its Communication, the Commission sets out
how it intends to respond to the European Council's June Conclusions.
It proposes two inter-linked legislative measures. The first would
amend the draft Regulation establishing a Schengen evaluation
mechanism which was initially proposed by the Commission in November
2010. The amended proposal would strengthen provisions on monitoring
of the application of the Schengen acquis in Schengen States,
set out more clearly the practical support available to Member
States to tackle any deficiencies (for example, capacity-building
assistance from Frontex or the deployment of European Border Guard
Teams), and provide for the temporary reintroduction of internal
border controls if serious deficiencies relating to external border
controls or return procedures persist.[21]
3.12 The second legislative measure proposed in the
Communication would amend the 2006 Regulation to include a new
EU mechanism to govern the temporary re-introduction of internal
border controls. The Commission notes that internal border controls
have been re-introduced 26 times since the 2006 Regulation entered
into force (in October 2006), most recently by Norway and Sweden
in response to the terrorist attack in Norway last July. It says
that the controls have never exceeded 30 days and, in most cases,
are for a much shorter period, but that the information provided
to the Commission and other Member States to justify their re-introduction
is often perfunctory.
3.13 The main consequence of the changes proposed
to the 2006 Regulation would be to give the Commission the power
to decide on the reintroduction of internal border controls. Although
Member States would be able to act unilaterally if they considered
that immediate action was needed to respond to a serious threat
to public policy or internal security, the reintroduction of internal
border controls in these circumstances would be limited to five
days. Thereafter, any decision to maintain internal border controls
would be taken by the Commission.
3.14 The Commission says that an EU mechanism is
needed in order to ensure that "the fundamental principles
of Union law and in particular the right of free movement are
safeguarded" and to "allow all European interests to
be taken into account in securing the Schengen area, while setting
limits to unilateral national initiatives which, in isolation,
can never be an effective response to common threats."[22]
Document (b) — the draft amending Regulation
3.15 The draft Regulation proposed by the Commission
would amend those provisions of the 2006 Regulation (summarised
in paragraphs 3.2-3.3) which concern the temporary re-introduction
of internal border controls. As the 2006 Regulation does not apply
to the UK, any amendments to it will also not apply and the UK
will not be entitled to take part in any eventual vote on the
draft amending Regulation.
3.16 The draft Regulation maintains "a serious
threat to public policy or internal security" as the basis
for re-introducing internal border controls and establishes procedures
for their re-imposition in three types of situation:
- where the need to re-impose
controls can be foreseen, for example planned major sporting events
or political demonstrations;
- where the need to re-impose controls cannot be
foreseen, for example in response to a terrorist attack; and
- where the Schengen evaluation mechanism reveals
persistent and serious deficiencies in a Member State's implementation
of external border controls or procedures for the return of illegal
immigrants which constitute a serious threat to public policy
or internal security at EU or national level.
3.17 In the first situation, the decision to re-introduce
internal border controls is to be taken by the Commission, at
the request of a Member or on its own initiative, subject to oversight
by Member States under the so-called "examination procedure."
[23] The controls
should last for no more than 30 days or for the foreseeable duration
of the serious threat, if longer, but must not exceed six months
in total.
3.18 In the second situation, the decision to re-introduce
internal border controls is taken by the Member State concerned,
but the duration of the controls is limited to five days. Any
decision to extend this period must be taken by the Commission.
3.19 In the third situation, the decision to re-introduce
internal border controls is taken by the Commission, again subject
to oversight by Member States under the "examination procedure."
The controls should be for no more than six months, but may be
extended for three further periods of six months.
3.20 The draft amending Regulation lists a number
of criteria to be taken into account when determining whether
the re-imposition, or prolongation, of internal border controls
is justified. These include:
- whether internal border controls
are a necessary and proportionate response to the nature of the
threat;
- whether alternative measures (for example, assistance
from Frontex, the European Asylum Support Office, or Europol)
would be sufficient to address the threat;
- the likely impact of any serious deficiencies
identified as a result of monitoring and evaluation under the
Schengen evaluation mechanism; and
- the likely impact on free movement.
3.21 The draft Regulation says that the Commission,
before taking a decision, may seek information from Member States,
Frontex, Europol, Eurojust, or the EU Fundamental Rights Agency
and may carry out inspection visits.
The Government's view
3.22 The Minister for Immigration (Damian Green)
notes that the changes proposed to the 2006 Regulation would have
no impact on UK law as they concern provisions of the Schengen
acquis in which the UK does not take part. Nevertheless,
he recognises that it is in the UK's interest to support reforms
which seek to strengthen the external borders of the Schengen
free movement area, not least because "many of those entering
the Schengen area illegally do so with the intention of travelling
to the UK."[24]
He adds:
"We would also expect the UK to be party to
any political discussion relating to the control of illegal immigration
in the EU, including discussion of proposals for re-inforced Schengen
governance."[25]
3.23 The Minister accepts that a temporary re-introduction
of internal border controls in situations where a Member State
has failed adequately to protect its part of the external Schengen
border should, in principle, help to instil stronger discipline
within the Schengen area and impede illegal immigration. He expresses
concern, however, that the changes proposed to the 2006 Regulation
would restrict the ability of Member States to decide when to
re-introduce internal border controls. He continues:
"Whilst acknowledging that reintroduction of
border controls has implications affecting the whole of the Schengen
area, the Government notes that existing Schengen rules reflect
Member States' primary responsibility for matters of internal
security and their need to take prompt measures to protect their
citizens in urgent cases."[26]
3.24 Although the changes proposed to the 2006 Regulation
would not have a direct impact on the UK, the Minister notes that
some Member States may view the restrictions on their ability
to decide when to re-introduce controls as contrary to the principle
of subsidiarity. He says that the Government intends to press
the Commission to explain more fully its reasons for constraining
Member States' ability to act.
Conclusion
3.25 We have set out in some detail the background
to the Commission's proposals in order to illustrate the evolution
that has taken place within the Schengen area since its incorporation
within the EU Treaties. We think that the draft amending Regulation
would, if adopted, complete the transformation of Schengen from
a system based on intergovernmental cooperation to one based exclusively
on the Community method of decision-making.
3.26 As the Minister observes in his Explanatory
Memorandum, "decisions on internal border controls within
the Schengen zone are principally matters for the Member States
taking part in the Schengen area rather than the UK." Nevertheless,
the constraints imposed on Member State action and the conferral
of powers on the Commission to decide, in all but the most urgent
and exceptional circumstances, whether internal border controls
may be re-introduced are difficult to reconcile with Article 72
TFEU which says that EU action shall not affect the exercise by
Member States of their responsibilities with regard to maintaining
law and order and safeguarding internal security.
3.27 The Commission's proposals on the governance
of the Schengen area are closely connected to its proposals for
a new EU mechanism to verify the application of the Schengen acquis,
which are described in chapter 2 of this Report. They will also
have important implications for on-going monitoring and evaluation
of the application of Schengen rules and standards in Bulgaria
and Romania if a draft Council Decision providing for their full
participation in the Schengen free movement area is approved by
the Council.[27]
We therefore recommend that the Communication on Schengen governance,
the draft Regulation amending the Schengen Borders Code and the
draft Regulation establishing a Schengen evaluation mechanism
should be debated at the same time as the draft Decision on Bulgaria's
and Romania's accession to the full Schengen acquis.
16 See Regulation (EC) No 562/2006, OJ No L 105, 13.04.2006,
p.1. Back
17
See Article 23 of the 2006 Regulation. Back
18
See (32735): HC 428-xxviii (2010-12), chapter 9 (24 May 2011).
Back
19
See European Council Conclusions 23/24 June 2011, EUCO 23/11 -
http://register.consilium.europa.eu/pdf/en/11/st00/st00023.en11.pdf. Back
20
See para 22 of the European Council Conclusions. Back
21
For further details, see chapter 2 of this Report. Back
22
See p. 3 of the Commission's Communication. Back
23
Under this procedure, the Commission would have to submit a proposed
decision to reintroduce internal border controls to a Committee
composed of representatives of Member States. If a simple majority
of the Committee opposes the Commission's decision, the Commission
may not implement it but can refer it an appeal committee for
further consideration. See Article 5 of Regulation (EU) No 182/2011,
OJ No L55, 28.02.2011, p.13. Back
24
See para 21 of the Minister's Explanatory Memorandum. Back
25
Ibid. Back
26
See para 22 of the Minister's Explanatory Memorandum. Back
27
See (33043) 14142/10: HC 428-xxxvii (2010-12), chapter 2 (12 October
2011). Back
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