Created in 1995, the Schengen Area is now a flagship pillar of the European Union, called by the European Commission a “crown jewel of European integration” and “the beating heart of Europe”. Allowing for the free movement of people and goods, there are no border controls between Member States of the Schengen Area, or at least there shouldn’t be.
Although Schengen has been extending regularly since its creation, over recent years, prompted by the migration crisis of 2015, border controls have started being reintroduced between several Member States.
1. Schengen Borders Code
The Schengen Borders Code (SBC) provides Member States with the capability of temporarily reintroducing border control at the internal borders “in the event of a serious threat to public policy or internal security”. The reintroduction of border control at the internal borders must be applied as a last resort measure, in exceptional situations, and must respect the principle of proportionality.
The code also stipulates the duration of such a temporary reintroduction of border control at the internal borders is limited in time, depending on the legal basis invoked by the Member State introducing the border control. The scope and duration of reintroduced border control should be restricted to the bare minimum needed to respond to the threat in question.
The reintroduction of border control is a prerogative of the Member States. The Commission may issue an opinion regarding the necessity of the measure and its proportionality but cannot veto a Member State’s decision to reintroduce border control.
2. Reintroduced borders controls
Germany has readded controls on the border with Austria since 2015. And although Schengen Rules allow for temporary controls to be reintroduced “as a last resort” and “in the event of a serious threat to public policy or internal security”, the prolonged “temporary” measure has brought into question the safety and integrity of the Schengen Area. “Schengen is at least battered”, said Leon Züllig, a Schengen researcher at JLU-University Gießen, reported by Euractiv.
Moreover, this year, Germany has announced it intends to reinstate controls on the borders with Poland and the Czech Republic, citing growing concern over human smugglers as the reason behind the measure.
“We want to prevent evasive movements of smugglers through flexible and mobile controls at changing locations”, Nancy Faeser, Germany’s Federal Minister of the Interior and Community, said at a press conference in Berlin 27 September. “If we do not succeed in better protecting the external borders, then open borders within the EU are in danger”, she argued.
In response to Germany’s controls, Austria’s Foreign Minister Alexander Schallenberg said that, “sadly”, Austria had to implement its own controls on the borders with Hungary and Slovenia, mentioning that the Schengen “system is dysfunctional”. The snowball effect continued, as Poland announced it will also return controls on the border with Germany, as well as on the Slovak border.
However, Austria is singlehandedly planning to put checks back into place on the border with Italy, prompted by a recent wave of migrants through the island of Lampedusa. Separately, France has also reinstated controls at all of its borders, as an anti-terrorism measure.
3. Death of Schengen
“Travelling across Europe without border interruptions has become the norm in the last 20 years. But that makes it even more painful to see overzealous national authorities reintroduce border checks”, writes Euractiv.
During the Covid-19 pandemic, when travelling within Europe was almost completely brought to a standstill for safety reasons, French President Emmanuel Macron warned that the “death of Schengen”, brought by closing borders, would endanger the “survival of the European Project”.
Commenting on the country’s border controls, Green EU lawmaker from Germany, Erik Marquardt, says they have “little tangible impact” besides delays, as border police are not allowed to turn refugees away, but have to accept their asylum applications.
On the other hand, the checks reduce the bilateral flow of goods by 2.7%, putting European economy at stake, according to Elisabeth Christen, a senior economist at the Austrian Institute of Economic Research.
The increasing reintroduction of border controls is in breach of EU treaties and Schengen rules. “In 2022, the EU’s top judges ruled that Austria’s border checks – which persist to this day – were illegal given their sustained nature, well beyond any reasonable precautionary duration”, Euractiv writes, however, no further action has been taken beyond that, against Austria or any of the other countries reinstating checks.
“The European Commission does next to nothing, although as the guardian of the treaties, it should actually defend the Schengen area”, argues Sergio Carrera, senior fellow at the Brussels-based think-tank, the Centre for European Policy Studies (CEPS), calling for the Member States breaching Schengen regulations to be brought “to court immediately and stop politicizing this subject”.