The Commission’s proposed reform of the Schengen area – stronger enforcement or conflict aversion?

After rather chaotic initial responses to the spreading pandemic in the first months of 2020, the Commission nowadays appears eager to look and move ahead. As a case in point, its recently proposed reform of Schengen governance seeks to create a ‘fully functioning and resilient Schengen area’. To that end, the Commission inter alia acknowledges the need for strengthened enforcement. As this blog post will argue, however, that commitment may be belied by the substance of reform. The Commission’s announcement to use enforcement measures more actively may be undone by a relaxation of standards delineating Member States’ latitude under the Schengen acquis. Accordingly, the view will be posited that the Commission’s reforms are not aimed at stronger enforcement as an end in itself, but rather at avoiding open conflict with Member States over the reintroduction of internal border controls.

This argument will proceed in three steps. It will first revisit the Commission’s Schengen strategy and its commitment to strengthened enforcement of the Schengen acquis (1.). Subsequently, it will highlight that the Commission’s reforms seek to expand Member States’ leeway on some controversial aspects and may thus effectively reduce the need for enforcement measures in the first place (2.). Against this backdrop, third, it can be concluded that the Commission’s reforms are not primarily aimed at stronger enforcement of Union law but rather at avoiding open conflict over border controls (3.).

1. The nature of enforcement in the Schengen area

It is assumably for reasons of political pragmatism that the Commission had largely excluded Schengen from its 2020 New Pact on Migration and Asylum. Instead, the Pact merely announced in flowery language a ‘fresh way forward’ for the Schengen area. In 2021, this effort materialised in the Commission’s Schengen strategy and in two legislative proposals – one repealing the Regulation regarding the Schengen Evaluation Mechanism and another amending the Schengen Borders Code. In this vein, the Commission specifically highlights the need for stronger enforcement of the Schengen acquis, pointing at two aspects specifically.

In the first place, the Schengen acquis is home to a specific intergovernmental enforcement mechanism, namely the so-called Schengen Evaluation and Monitoring Mechanism. In its Schengen strategy, the Commission accordingly stresses the need to bolster this legal arrangement. Whereas this is not the place to discuss the full range of reforms proposed, the Commission is willing to strengthen this peer-to-peer mechanism inter alia by increasing the proportion of unannounced, on-site visits. Under the reformed regime, unannounced visits would thus become a sort of ‘random health check’ of Member States’ implementation of the Schengen acquis. Nonetheless, as the Commission itself notes, this mechanism has so far failed to bring underperforming Member States back in line.

Against this backdrop, the Commission has, in the second place, also come to consider the use of infringement procedures to cater to effective enforcement. For scholars of other fields of EU law, this may sound like a matter of course. After all, the Commission should be naturally inclined – as the guardian of the Treaties – to have potential shortcomings resolved; if need be, through litigation before the ECJ. Until now, however, it remained extremely reluctant to file infringement procedures with a view to Member States’ decisions to re-introduce border controls. Instead, the relatively scarce jurisprudence of the Court resulted from preliminary references filed by national courts. By linking the Schengen Evaluation and Monitoring Mechanism to the possible use of infringement procedures, this suggests that there may be a gradual change of hearts within the Commission.

Nonetheless, the Commission’s Schengen strategy employs rather cautious wording. Neither does it ultimately determine which repercussions may follow from deficits detected in the context of the Schengen Evaluation Mechanism, nor does it outline in detail which misconduct would give rise to an infringement procedure. Instead, the Commission merely sketches in broad strokes that ‘systematic’ failure to follow recommendations in the context of the Schengen Evaluation Mechanism or ‘persistent deficiencies’ in a Member State may bear such consequences. Accordingly, it may be impossible to determine from the outset whether this will motivate the Commission to initiate infringement proceedings in practice. On an intermediate level of abstraction, however, the Schengen strategy appears to approximate the Commission’s practice in the Schengen acquis to its general policy on infringement procedures.

2. Adjustments to Member States’ leeway and repercussions for enforcement

Besides aspects of monitoring and sanctioning, enforcement of Union law is equally influenced by the substantive rules in question. Accordingly, the Commission’s commitment to strengthened enforcement should be viewed in relation to the proposed adjustments to the Schengen acquis in substance. In this regard, the reforms seek to consolidate and, on some occassions, expand Member States’ latitude under the Schengen Borders Code. By essentially proposing to vindicate some of the most controversial Member States’ practices, namely those relating to the reintroduction of internal border controls, the Commission’s reforms may thus reduce the need for enforcement measures in the first place.

As is well-known, the Schengen Borders Code allows Member States to temporarily reintroduce internal border control otherwise principally abolished among Schengen States. As it currently stands, the Code merely accepts such a measure in the case of a serious threat to public policy or internal security but makes no mention of threats to public health for that matter. Accordingly, the Commission proposes to introduce threats to public health as a ground for reintroducing internal border control. Curiously, however, its proposal does not include public health as a standalone condition. Instead, the proposed provision states that threats to public policy or internal security may be considered to arise inter alia from ‘large scale public health emergencies’ (Article 25 thereof). The Commission thus conceptualises public health threats as a sub-category of threats to public policy or internal security, which reproduces, in effect, the interpretation underpinning Member States’ practices during the first phases of the pandemic.

In passing, the Commission’s proposal moreover relaxes the pertinent time limits for reintroduced border controls. Whereas this used to be a highly contentious matter a few years back, the Commission nowadays appears to be of the view that certain threats may persist for a considerable amount of time and that time limits for internal border controls should be adjusted accordingly. In this respect, the Commission’s proposal to the Schengen Borders Code ‘recognises that Member States may see the need to maintain internal border controls beyond this timeframe.’ This suggests that the Commission has principally given in to the practices of some Member States, perpetually prolonging internal border controls.

Besides these changes, the Commission suggests the introduction of a new mechanism to complement Member States’ decision making on the reintroduction of internal border controls. The mechanism is built on the blueprint developed in the context of the so-called migration crisis, which may nowadays be found in Article 29 of the Schengen Borders Code. Once a threat affects a majority of Member States, and thus the functioning of the Schengen area in its entirety, the procedure enables the Commission to propose the Council to authorise, by virtue of an implementing decision, the reintroduction of internal border controls. Since such a mechanism would foresee, in times of severe crisis, a shift of decision-making authority to EU institutions, it may be viewed as a first rudimentary step towards a ‘truly European governance of the Schengen area’, as the European Parliament had aptly put it. However, it is significant to note that this mechanism does not remove Member States’ latitude to unilaterally introduce border controls but, rather, complements it. Accordingly, this new procedure would constitute an additional avenue for Member States to reintroduce or keep in place internal border controls, albeit subject to a more Europeanised procedure.

This suggests that, in the context of reintroduced internal border controls, the Commission’s reforms seek to vindicate some of the Member States’ controversial practices. By relaxing supranational standards circumscribing Member States’ latitude in this vein, these reforms effectively mitigate the need for enforcement measures. To be sure, the proposed reform of the Schengen Borders Code does not do away with all standards delineating Member States’ leeway to re-introduce border controls. Rather, it explicates in greater detail the applicable standard of proportionality and strengthens procedural safeguards in this regard. However, these amendments may not call into question the fact that the Commission’s reform proposals adjust supranational law to the practices of the Member States and not vice versa.

3. The Commission’s give-and-take: a strategy of conflict avoidance

From the perspective of enforcement, the question may therefore be raised why the Commission opted for a give-and-take approach in the first place. A stronger commitment to enforcement, inter alia by virtue of the infringement procedure, could have done without such substantive reforms. It is trite to second-guess the Commission’s motives in this regard. However, it can be noted that the previous practice of intergovernmental peer-to-peer evaluations and absence of infringement proceedings put the Commission in a relatively comfortable position. It allowed the Commission to avoid open conflict with Member States over the question whether the re-introduction of internal border controls may be proportionate or not.

As the preceding assessment suggests, the proposed reforms will enable the Commission to continue such a strategy of conflict avoidance. From a political point of view, this may be sensible. The Commission is well-advised to steer clear of situations in which it would have to compel Member States to terminate controls at their borders. As a supranational body, it may lack authority to call into question national decision makers’ assessment that border controls are necessary in the light of imminent threats to national public policy or internal security. In legal terms, however, the Commission’s announcement to make more active use of enforcement mechanisms, especially the infringement procedure, should be viewed with caution. The substantive reforms of the Schengen acquis, and the Schengen Borders Code specifically, appear to be pursue a different rationale. The Commission’s proposed reforms seem to be motivated, first and foremost, by the Commission’s aversion to open conflict over Member States’ power to re-introduce internal border controls, not a more active use of enforcement measures.

Author: Jonas Bornemann

Jonas Bornemann is a PhD candidate at University Konstanz, where he works as an academic assistant at the Chair of Public, European and International Law. Jonas holds a LL.M. from Maastricht University and was a legal trainee at the Odysseus Network for Legal Studies on Immigration and Asylum in Europe.

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