A. Introduction
Different visions underlay Schengen integration from the outset.Footnote 1 While the history of European integration places the abolition of internal border controls in close contextual relation to the economic rationale of completing the internal market, Schengen has always served as an identity-creating project.Footnote 2 To citizens, it epitomizes a spatial experience that adds symbolic weight to the practical benefits of abolishing internal border controls.Footnote 3 In addition, other motives may have driven the evolution of the Schengen acquis, such as the ambitions of security actors utilizing the emerging forms of transnational cooperation to expand their field of competences.Footnote 4 But, the co-existence of different Schengen visions never hampered its success. On the contrary, for quite some time, the fact that Schengen’s legal framework married different interests was part of its charms, ensuring that border controls remained an exceptional phenomenon in practice.
More recently, however, the pluralism of visions that originally enabled Schengen’s success may be the cause of its sorry state. Following a series of crises, several Member States prioritized their security concerns over other visions of Schengen.Footnote 5 National practices of reintroduced and repeatedly prolonged internal border controls bear testament to that effect, calling into question the principle of unchecked travel to which Schengen lends its name. As argued in the following, these crisis experiences were consolidated by the latest attempts to reform the Schengen acquis. By asserting Schengen as a pan-European security project, these changes would upset the equilibrium of different visions characterizing earlier phases of Schengen integration. The reform will particularly call into question the function of Schengen as an identity-creating project for EU citizens.
This is not just problematic in terms of symbolism. The proposed reform may exceed the limits of what is acceptable under EU constitutional law. As will be argued in the following, these reforms will frustrate the constitutionally warranted balance that needs to be struck between different rationales of Schengen integration. To substantiate that argument, current attempts at reform will be assessed in the light of the constitutional foundations of the Schengen acquis and the European Court of Justice’s (ECJ’s) interpretation thereof. In this vein, it can be shown that the latest reform efforts assert Schengen as a pan-European security project. Whereas this need not amount to disintegration, the following investigation suggests that it would nonetheless impair Schengen’s identity-creating dimension for citizens.
The following analysis will focus on the reintroduction of internal border controls and measures that may be equivalent to such controls in their effects. The latter category refers particularly to police control measures in border regions as well as monitoring and surveillance practices based on modern technologies. This analytical focus will allow for an assessment of some of the central pieces of reform, excluding other aspects, such as the proposed changes to combat the so-called instrumentalization of migrants.Footnote 6 While the investigation will primarily focus on the Commission’s proposal amending the Schengen Borders Code, it will likewise examine other elements of reform that have already become binding law, such as the recently amended Schengen Evaluation mechanism or those that are of a political nature, such as the Commission’s “Schengen strategy.”Footnote 7 In addition, it will consider the co-legislator’s responses to the proposed changes insofar as they are available at the time of writing. On the one hand, this applies to the Council’s “general approach” to the proposed reform of the Schengen Borders Code and, on the other hand, to the European Parliament rapporteur’s draft report. However, the respective committee has not yet debated the latter and it will, therefore, merely serve as a first tentative indication of the Parliament’s position.Footnote 8
This investigation will examine Court of Justice case law, including judgments rendered after the Commission’s reform proposal had been tabled.Footnote 9 It will abstain from criticizing the Commission’s reform proposal because of that jurisprudence, given that these verdicts were unknown to the Commission when the proposal was drafted. Nevertheless, it will be argued that the Council took up certain elements of the Commission’s proposal that conflicted with the Court’s interpretation, even after the latter had pronounced itself on the matter. Accordingly, the view will be put forward that the Commission’s proposal encouraged the Council to endorse a reform that would conflict with the constitutionally warranted balance of visions of Schengen.
The investigation proceeds in three steps. It will, first, assess those elements of the Commission’s reform proposal that would reaffirm the nature of Schengen as a pan-European security project (B.). While national security actors’ concerns drive this development, it should not be mistaken for a renationalization of Schengen. Instead, as the following investigation will suggest, second, this reform is complemented by elements of gradual supranationalization of Schengen governance (C.). Politically, such a combination of reform measures may be promising for the Commission, but, as will be argued in the third section, it is likely to undermine the constitutional balance that needs to be struck between competing visions of Schengen integration, particularly by compromising its identity-creating dimension (D.).
B. Schengen as a Pan-European Security Project
Historically, the emergence of Schengen is closely linked to the completion of the internal market. Abolishing internal border controls reduced border waiting times and allowed smooth cross-border travel. However, as political science research suggests, the establishment and evolution of Schengen may be strongly driven by other rationales.Footnote 10 An oft-overlooked case in point relates to the motives of security actors at sub-national, national, and European levels who utilize the emerging “security field” to play out their expertise.Footnote 11 As has been convincingly argued, Schengen integration has paved the way for establishing a veritable border control community comprised of delegates from national ministries (routinely of the interior) and the European Commission.Footnote 12 From this perspective, Schengen integration presents itself as a pan-European security project that enables collective action to advance border security objectives.Footnote 13
The Commission’s latest reform proposal would reaffirm the notion of Schengen as a security project. It does so by prominently endorsing the security concerns put forward by some Member State governments and by proposing to amend the Schengen Borders Code accordingly. This assertion of Schengen as a security project can be witnessed in relation to three reform elements. First, it features in the normalization of exceptions that follow from the acknowledgment of new grounds to justify the reintroduction of internal border controls (I). Second, the proposal appears to endorse the argument put forward by national security actors that threats may last indefinitely and that the maximum periods of permitted internal border control should be adjusted to this end (II). Third, the reaffirmation of Schengen as a security project features in the context of conventional and new forms of security checks in border regions (III).
I. Normalizing Exceptions: New Grounds for the Reintroduction of Internal Border Controls
It is not unreasonable to label the existence of reintroduced and repeatedly prolonged internal border controls the “new normal” in the Schengen area.Footnote 14 Although the significant differences between Member States should not be ignored, the number of instances in which internal border controls have been reinstated has skyrocketed in recent years.Footnote 15 Accordingly, some national governments may have grown accustomed to the idea that internal border controls may constitute a viable option to combat threats of various kinds.Footnote 16 In this sense, it may be a legacy of a series of crises that otherwise exceptional internal border controls have become a relatively frequent phenomenon in Schengen.
To some extent, the normalization of reintroduced and repeatedly prolonged internal border controls is reflected in the Commission’s reform proposal. On several occasions, the proposed changes would codify previous crisis practices. However, such a codification exercise risks reshaping the Schengen acquis along the lines of a nationally determined security paradigm. By pandering to the Member States that reintroduced and perpetually prolonged internal border controls in the past, the Commission’s proposal would “legalise existing practices” likely to conflict with the Schengen acquis in its current form – as the European Parliament aptly put it.Footnote 17
A rather uncontentious example concerns the affirmation that threats to public health may justify the reintroduction of internal border controls. This reflects the practices of many Member States during the pandemic. The Schengen Borders Code does not explicitly permit the reintroduction of border controls to combat threats to public health. During the first phase of the pandemic, however, many Member States justified the reinstalment of border controls by arguing that a global health crisis may likewise give rise to a serious threat to public policy, provided it attains a certain degree of severity and affects one of the fundamental interests of society.Footnote 18 In this vein, public health emergencies were conceptualized as a sub-category of threats to public policy. Admittedly purposive in nature,Footnote 19 such an interpretation allowed national authorities to reintroduce border controls in their response to Covid 19.Footnote 20
In the Commission’s latest reform proposal, the legality of this course of action would be verified.Footnote 21 However, the proposal does not mention public health as a standalone condition. Instead, it sticks to a conceptualization of public health emergencies as a specific embodiment of threats to public policy or internal security, thereby reproducing the interpretation underpinning Member States’ practices during the first phase of the pandemic. In the interest of orderly legal drafting, it may have been preferable to include public health threats as a standalone ground for the reintroduction of internal border controls. This would align the Schengen Borders Code with other provisions of EU law, especially rules regarding the free movement of citizens.Footnote 22
More controversially, however, the proposed reform would specify that “large scale unauthorized movements of third-country nationals” could justify the reintroduction of internal border controls.Footnote 23 This amendment has attracted a fair share of criticism on account of its ambiguity, including from the European Parliament’s rapporteur for the file.Footnote 24 It appears to open floodgates to practices of reintroduced internal border controls. In the light of its wording, it is not inconceivable that Member States impose internal border controls to reduce secondary movements that do not reasonably amount to a “serious threat to public policy or internal security.”Footnote 25 While the Commission’s proposal tries to feather this vague wording through strict procedural requirements, particularly the duty to substantiate the existence of such a threat through objective and reliable information obtained, inter alia, from EU agencies,Footnote 26 it may still be questionable whether Member States will feel bound to respect procedural safeguards of this nature.Footnote 27
At an intermediate level of analysis, this new ground for reintroducing internal border control may be viewed as a case in point for reaffirming Schengen as a security project. Ever since the culmination of the so-called refugee crisis, national governments have put forward the argument that a high number of entries of third-country nationals would justify the reintroduction of internal border controls.Footnote 28 In the literature, this justificatory practice has been criticized as a political attempt to normalize the continued existence of internal border controls.Footnote 29 In this respect, it is submitted that public order or security threats do not merely exist in impending situations of danger but may emerge from less imminent situations of risk.Footnote 30 By including a new ground for reintroducing internal border controls to that end, the Commission’s recent reform proposal may be said to endorse such a risk-based justification. This illustrates how the security concerns of a small group of national governments made their way into the Commission’s proposal, potentially shaping the future evolution of the Schengen area.
II. Perpetuating Temporariness – What Limits to the EU Legislature’s Discretion?
The Commission’s proposal relaxes the pertinent time limits for reintroducing border controls. This may be viewed as another element of reform reaffirming the nature of Schengen as a security project. While maximum time limits used to be highly contentious,Footnote 31 the Commission nowadays endorses 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. Besides minor changes in the context of unforeseeable threats, this effect can be witnessed particularly in relation to the maximum duration of border controls to combat foreseeable threats. The proposal suggests that “the possibility to prolong border control... is extended to a maximum period of two years.”Footnote 32
Upon closer reading of the proposal, however, the question can be raised as to whether the Commission’s reform would in fact even do away with the binding time limit for unilaterally introduced border controls altogether. The proposal is curiously ambiguous in this regard. It is not entirely clear whether the renewed Schengen Borders Code would allow Member States to keep internal border controls in place beyond that two-year limit in situations where there are persisting threats.Footnote 33 While Progin-Theuerkauf suggests that the two-year maximum duration should be imperative, Schumacker begs to differ, arguing that the proposal proposes a legal framework that may allow for the continuation of internal border controls indefinitely.Footnote 34
Given the ambiguity in the Commission’s reform proposal, both views could be merited. On the one hand, the proposal stresses the maximum two-year time limit several times. On the other hand, the proposal adds that Member States are obliged to notify the Commission if they consider that certain exceptional situations justify the continuation of internal border controls “in excess of the maximum period referred to in Article 25(5).”Footnote 35 Apart from the fact that there is no Article 25(5) in the proposed amended Schengen Borders Code,Footnote 36 doubts may be harbored as to how this provision should be understood. Does it merely oblige Member States to inform the Commission that a threat persists? Or does the proposal insinuate that national authorities could, in such a situation, move beyond the two-year maximum period?
At first glance, the former interpretation appears to be more plausible. There would be no point in instituting a two-year time limit if Member States could exceed that period whenever they deemed it necessary. Nevertheless, an interpretation that would effectively undo the two-year period may find support in the Commission’s explanations. The proposal “recognises that Member States may see the need to maintain internal border controls beyond this timeframe.”Footnote 37 Admittedly, the proposed reform does not explicate whether, in such a situation, the Member State is to merely notify its view to the Commission, hoping for the activation of a new supranational procedure,Footnote 38 or whether this notification would go hand-in-hand with a prolongation of internal border controls. However, under the current and prospectively reformed Schengen Borders Code, such a notification would accompany the Member States’ decision to reintroduce internal border controls.Footnote 39 All this suggests that the Commission’s reform proposal yields to the argument of national governments that security threats may last for an indefinite period and proposes an amendment of secondary law to that end.
In any case, the Court of Justice had rendered its judgment in Landespolizeidirektion Steiermark in the meantime.Footnote 40 To be sure, this judgment primarily concerned the question under which circumstances Member States may unilaterally decide to reintroduce internal border controls de lege lata. As such, it is evident that the Court did not principally address the question in how far the EU legislature may be free to change the legal framework.Footnote 41 However, the question may be raised whether guidance can be inferred from the Court’s jurisprudence for the future design of the Schengen Borders Code. Does the ECJ’s jurisprudence limit the discretion of the EU legislature?
Curiously, both the Council and the European Parliament’s rapporteur seem to acknowledge that the judgment has implications for the reform of the Schengen Borders Code. They disagree, however, on its precise ramifications. On the one hand, the European Parliament’s rapporteur considers that the absence of a maximum time limit for reintroducing internal border controls conflicts with the Court’s jurisprudence.Footnote 42 On the other hand, the Council has been more than willing to endorse an interpretation of the Commission’s proposal that Member States could, in principle, keep intact border controls indefinitely.Footnote 43 Although the Council Presidency, in light of the judgment in Landespolizeidirektion Steiermark, suggests limiting these instances to “major exceptional situations,” it does not challenge the premise that Member States may unilaterally decide to keep internal border controls intact beyond the two-year maximum period.
While the Court’s judgment is not entirely clear on this point, some indications rally against the interpretation put forward by the Council. It may be possible to infer from the Court’s reasoning certain constitutional limits to the EU legislature’s discretion, specifically those that follow from the need to properly reconcile two potentially conflicting norms in primary law. On the one hand, the ECJ acknowledges that the absence of internal border controls constitutes “one of the main achievements of the European Union in accordance with Article 3 (2) TEU” and that, consequently, any reintroduction of internal border controls should remain an exception.Footnote 44 On the other hand, Member States are responsible, pursuant to Article 72 TFEU, for safeguarding law and order and internal security. By including provisions limiting the periods of temporarily reintroduced internal border controls, the ECJ held that the Schengen Borders Code reconciles the two provisions, effectively striking a “fair balance” between them.Footnote 45
Against this backdrop, an argument can be put forward that any prospective reform of the Schengen Borders Code would equally have to meet a such “fair balance” test. Admittedly, the ECJ’s judgment in Landespolizeidirektion Steiermark refers to the Code de lege lata, namely the fact that, in the current version thereof, the EU legislature duly reconciled the objective of abolishing internal border controls and Member States’ responsibilities for safeguarding public order and security. It is not unreasonable to presume that this standard would apply to any future reform of Schengen as well. In this vein, the Court’s constitutional interpretation may impose limits on the EU legislature when drafting reforms to the Schengen area.
A requirement to strike a “fair balance” between primary law provisions does not prescribe in positive terms how such a balance would have to be attained. Instead, the EU legislature retains a relatively wide margin of discretion to decide how the two constitutional provisions should be reconciled.Footnote 46 However, this discretion would not be without limits. A legal arrangement that unduly disregards the Treaty’s objective of abolishing internal border controls or, respectively, Member States’ responsibilities to maintain public order and security would likely defy the idea of a “fair” balance. An interpretation that would effectively do away with a maximum period for unilaterally reintroduced controls would be a case in point. In Landespolizeidirektion Steiermark, the ECJ specifically took issue with an interpretation that would have allowed Member States to keep internal border controls in place for an unlimited period. In the view of the Court, this would compromise some of the foundational objectives of the EU, especially the principled abolition of internal border controls and the free movement of persons.Footnote 47 Against this backdrop, there is a good case to be made that a legal arrangement, such as the one proposed by the Commission and supported by the Council, would be incompatible with the constitutional underpinnings of Schengen law.
III. Security Checks and New Forms of Controls in Border Regions
An important role in the formation of Schengen as a security project is attributed to police checks in border regions.Footnote 48 Such checks are permitted under the Schengen acquis, provided they do not create an effect equivalent to border control.Footnote 49 The Schengen Borders Code non-exhaustively lists aspects that indicate whether a measure may be viewed as lawful or not. For example, police checks that do not have border control as their objective and those based on general police information and experience – carried out in a manner clearly distinct from systemic checks on persons at external borders and taking the form of spot-checks – can safely be presumed to be compatible with the Schengen Borders Code.Footnote 50 While the Court of Justice insisted that such measures must be governed by a regulatory framework that is “sufficiently precise and detailed,”Footnote 51 there can be no doubt that the Schengen acquis leaves Member States (and, by extension, national police authorities) a wide measure of discretion.Footnote 52
The Commission has promoted the active use of this discretion as an alternative to reinstating internal border controls.Footnote 53 Police checks in border regions are thus conceived of as a compensatory measure that makes amends for the security risks that would perceivably follow from the abolition of internal border controls.Footnote 54 However, the success of this strategy is questionable. So far, it did not ultimately motivate Member States to lift reinstated border controls.Footnote 55 Instead, the Commission’s advocacy in favor of police checks in the border region falls neatly in line with a more general change in the governance of border control in Europe.Footnote 56 While Schengen integration may have contributed to a decline of border control as a phenomenon of static interception at state lines, it impels the increased use of flexible spot checks by police forces that extend into border regions.Footnote 57
The emergence of a “patchwork of intra-Schengen policing” can be presented as an epiphenomenon of Schengen integration.Footnote 58 However, its exact contours remain difficult to sketch. The legal mandates of border police vary widely, investigations documenting their practices are hard to come by, and where they exist, they only relate to specific border regions.Footnote 59 While extended police measures in border regions may reasonably be presumed to exist in many national legal systems, these practices have only been brought to the attention of the Court of Justice in a small number of cases. In its jurisprudence, the Court accepted police checks at motorwaysFootnote 60 and trains but indicated that it would not accept any national legal arrangement on that point without a passing thought.Footnote 61 In Touring Tours, for instance, the Court decided that a German law requiring coach companies to check passenger’s passports and residence permits before crossing internal borders did not meet the standard of setting sufficiently precise boundaries to these checks, thus amounting to an “effect equivalent to border controls” incompatible with the Schengen Borders Code.Footnote 62
1. A Differentiated Regime for Third Country Nationals: “Secondary Movement” as a Threat
Cross-border travel of persons unauthorized to do so has been a constant concern of national security actors ever since the inception of the Schengen area.Footnote 63 In recent years, however, this phenomenon has been prominently associated with the cross-border mobility of third-country nationals, specifically the so-called “secondary movement.” The fact that third-country nationals may irregularly move across Schengen’s internal borders attracted the better part of attention, serving, inter alia, as a frequent justification for the introduction of internal border controls by Member States.Footnote 64 Even though the Commission endorsed these concerns in principle, it submits that alternatives to reintroducing internal border controls are available under EU law and that these measures are more efficient in tackling the (perceived) threats emanating from unauthorized cross-border mobility of third-country nationals.Footnote 65 Besides the option of Member States to adopt bilateral readmission agreements, this strategy is primarily aimed at promoting the use of police controls in border regions.Footnote 66
The Commission’s latest reform proposal would codify attempts to afford greater prominence to police checks in border regions to counter “secondary movement.” The proposal would include a procedure for specifically transferring third-country nationals apprehended near an internal border. This new procedure would apply exclusively to third country nationals. This is remarkable in and of itself, given that EU citizens may equally (although exceptionally) be excluded from legal entry or stay in another Member State.Footnote 67 Where a third-country national is apprehended as a result of a joint police operation close to an internal border without fulfilling the conditions for lawful entry, and there are clear indications that the person entered from another Member State, the person concerned should be transferred to the Member State from which s/he had presumably entered. The procedural rules to this end are spelled out in Annex XII, explicating, inter alia, that the person concerned has the right to appeal to national laws without creating a suspensive effect.Footnote 68
The limited procedural guarantees enshrined in this fast-track procedure raise serious doubts regarding its conformity with other EU migration law instruments and the Charter of Fundamental Rights. First, the Commission’s proposal appears to address all third-country nationals alike, irrespective of their legal status. Accordingly, the question may be raised whether the fast-track procedure would apply to international protection seekers. If it does, how would such a direct transferal be construed in the light of the Dublin III Regulation?Footnote 69 Does it imply that Member States could, in such a situation, decide to disapply the rules on transfers laid down in the Dublin system?Footnote 70 The Commission’s reform proposal remains silent on this point. There are thus several conceivable options on how to conceptualize the interplay of the two instruments. It is not entirely unreasonable, for instance, to qualify the fast-track transfer procedure as an activation of the discretionary clause in Article 17 of the Dublin III Regulation. If this was the legal solution envisioned by the Commission, it would require protection seekers to have lodged their application in the Member State to which they are being transferredFootnote 71 – a factual requirement that will often not be fulfilled in practice.
Second, pronounced criticism has been leveled at the proposed fast-track transfer procedure from a fundamental rights perspective. There are doubts as to whether such an arrangement would be compatible with the prohibition of refoulement and the jurisprudence of the ECtHR.Footnote 72 Moreover, the feasibility of such a practice has likewise been questioned from the perspective of Article 21 of the Charter of Fundamental Rights, which spells out a prohibition of discrimination based, inter alia, on race, color, ethnic or social origin, or genetic features. It is submitted that it is doubtful how such a fast-track transfer procedure could be operated without racial profiling practices.Footnote 73
In any case, the Commission’s efforts to incentivize bilateral cooperation between national (police) authorities in border regions can be seen as another element of reform reaffirming the nature of Schengen as a security project.Footnote 74 However, it is important to acknowledge that the new fast-track procedure would be aimed exclusively at third-country nationals, thus establishing a differentiated regime at internal borders.Footnote 75 This would incentivize national police authorities to check third-country nationals in border regions while keeping disruption to cross-border mobility to a bare minimum for anyone else. Such a reform would make amends for the (perceived) threat of “secondary movement” caused by unauthorized border crossings of third-country nationals.
2. Collecting and Processing Data on Intra-Schengen Travel
In addition to a differentiated regime of police controls in border regions, the governance of internal borders changed remarkably following the emergence of new technologies.Footnote 76 For quite some time, it has been questionable whether the use of surveillance and monitoring technologies at internal borders could be viewed as compatible with the Schengen acquis. The Court of Justice sticks to a traditional conception of border control, namely the one that views only tangible interceptions at states’ territorial fault lines as such.Footnote 77 Accordingly, the legality of using technologies of such a nature centers the question on whether they create an effect equivalent to border control.Footnote 78 On the one hand, monitoring and surveillance technologies allow for a relatively uninterrupted flow of travel and may, therefore, be preferable to static interceptions at borders properly. On the other hand, following the ECJ’s jurisprudence on alternative measures in border regions, these technologies would have to be governed by a legal framework in national law that ensures that controls of that nature do not amount to an effect equivalent to border control.Footnote 79
The Commission’s proposed reform would explicitly emphasize that the Schengen Borders Code does not prevent Member States from using passenger data for monitoring and surveillance, even at intra-Schengen borders.Footnote 80 This amendment could have far-reaching implications. It must be read in conjunction with proposed changes to related EU instruments on the gathering of personal data of cross-border travellers.Footnote 81 The combined effects of these reforms beg the question of whether Member States would ultimately be authorized to collect, store, and process the personal data of those who cross Schengen’s internal borders.Footnote 82
This scenario is not hypothetical. Emboldened by the fact that the Passenger Name Record (PNR) Directive allows Member States to collect and process information at selected intra-EU flights,Footnote 83 Belgium adopted a legal framework that applied the Passenger Name Record (PNR) data collection regime in a sweeping fashion to all internal Schengen border crossings. This national legal arrangement did not just apply to air travel but extended to rail, road, and sea border crossings. In Ligues des droits humains, the Court of Justice had the chance to pronounce itself on the compatibility of such a legal arrangement with EU law.Footnote 84
The Court acknowledged the far-reaching implications that practices of monitoring and storing personal data may have on the free movement of persons in the EU and, by extension, for establishing an area without internal border controls. In its judgment, it emphasized that national legislation that places certain nationals at a disadvantage simply because they have exercised their right to free movement constitutes a restriction on Article 45 of the Charter of Fundamental Rights.Footnote 85 While such restrictions can, in principle, be justified, the Court did not explicitly answer the question whether the Belgian national legal arrangement could be justified under EU constitutional law. Instead, it highlighted that the secondary law provisions in the PNR Directive indicate that the collection of data for the purpose of improving border controls and combatting illegal immigration conflicted with the said Directive because the latter did not mention these purposes of data collection.Footnote 86 Moreover, the storage of data of persons travelling across intra-Schengen borders, either by virtue of the PNR or by so-called advanced passenger information (gathered in line with the API Directive),Footnote 87 would allow Member State authorities to systematically ensure that those passengers were authorized to enter its territory or leave it.
This suggests that the Court’s jurisprudence ultimately hinges on secondary law de lege lata interpretations. The limits imposed on Member States to collect and process data for intra-Schengen travel derive from the Court’s interpretation of the PNR Directive, specifically the exhaustively listed purposes for which this data can be collected.Footnote 88 Under the current legal framework, improving border controls and combating illegal immigration are no acceptable options. Conversely, the Court’s jurisprudence appears not to forestall any reforms of the said instruments.
C. Towards a Gradual Supranationalization of Schengen Governance
Decision-making on borders is traditionally viewed as the gem in the crown of national sovereignty.Footnote 89 Perhaps it is therefore not surprising that Schengen never ultimately called into question the authority of national decision makers to reintroduce internal border controls. Rather, when the Commission proposed to assume delegated decision-making authority itself in this regard in 2011, many Member States signalled their fierce opposition, emphasizing that the decision to reinstate internal border controls should remain a national prerogative.Footnote 90 At the same time, the evolution of the Schengen acquis can reasonably be described in terms of gradual supranationalization. Following a series of reforms, Member States’ latitude to reintroducing internal border controls has become increasingly limited, both procedurally and substantively. Besides time limits that ensure the temporary nature of reintroduced internal border controls, substantive instructions and limits in supranational law follow from successive refinements to the proportionality principle in the Schengen Borders Code.Footnote 91
Nonetheless, the question of who gets to decide on reintroducing internal border controls has not been resolved. For most of its existence, the Schengen acquis strived for a “subtle balance”Footnote 92 between supranationalization and national decision-making latitude. This balance may have been upset lately. As a corollary to a perpetuated state of crisis in the Schengen area, it is not unreasonable to argue that some national governments have grown accustomed to treating their borders as a quasi-sovereign domain.Footnote 93 The practice of repeated prolongations of internal border controls suggests as much, indicating that – in a field so intimately linked to sovereignty – Member States may find ways to disregard procedural safeguards, including maximum time periods.
For supranational actors, this may be problematic. Schengen serves a legitimizing function for the European project itself. As Zaiotti insightfully argued, the EU institutions’ mantra-like depiction of Schengen as one of the most outstanding achievements of European integration aims to legitimize the supranational project vis-á-vis growingly skeptical audiences.Footnote 94 Failure to deliver on a promise vital to supranational law, such as ensuring the absence of internal border controls, may undermine the authority of supranational actors. Against this backdrop, it may be understandable that the European Parliament has voiced its discontent with the fact that a “truly European governance of the Schengen area” is still missing.Footnote 95
In its latest reform proposal, the Commission responded to calls of this nature. It suggested introducing a new supranationalized procedure for the reintroduction of border controls. However, this procedure would complement existing ones, forming an additional avenue for border controls (I). One of the most tangible legacies of vertical power conflicts surrounding the reintroduction of border controls relates to enforcement practices. Despite serious doubts about the compatibility of these practices with the Schengen Borders Code, there is a well-documented reluctance in the Commission to file infringement procedures over a national decision to reintroduce or prolong internal border controls.Footnote 96 As will be argued, the Commission’s reform would sound out avenues for alternative forms of enforcement without indicating whether it may be complemented by more active use of binding enforcement measures (II).
I. Supranationalization at the Expense of the Abolition of Internal Border Control?
The reintroduction of internal border controls has been a focal point of vertical power conflicts.Footnote 97 Ever since the infamous Franco-Italian affair over border crossings in Ventimiglia, national actors have made clear that they would not accept a legal framework that ultimately stripped them of the power to introduce internal border controls.Footnote 98 For Member States, the security functions of internal border controls and the possibility of reintroducing such controls unilaterally remain vital.Footnote 99
Against this backdrop, the Commission’s latest reform proposal attempts the impossible. On the one hand, it genuinely leaves the Member States’ decision-making powers over the reintroduction of internal border controls intact. On the other hand, it proposes a clarification of existing procedures for reintroducing internal border controls and adds a new, more Europeanized procedure to that end.Footnote 100 In this vein, it can be interpreted as an attempt to garner support from national governments in the Council, given that the proposed reform does not strip Member States of procedures to introduce internal border controls unilaterally. By complementing these procedures with one that involves both the Commission and the Council, the proposal responds to calls by the European Parliament rallying for a “truly European governance of the Schengen area.”Footnote 101
If the Commission’s reform proposal were to become law, this would make four procedures to reintroduce internal border controls in total. The first two relate to instances in which Member States decide to do so unilaterally. These procedures can be found in Article 25a, aimed at situations where immediate action is needed in light of foreseeable and unforeseeable events.Footnote 102 In addition, two procedures authorize the reintroduction of internal border controls collectively. An already existing procedure to that end is enshrined in Article 29, which may be activated once the overall functioning of the Schengen area is put at risk due to “persistent serious deficiencies relating to external border control.” In such a situation, the Commission would propose the Council to adopt a recommendation to that end. This may have served as a blueprint for a newly proposed fourth procedure.
To activate this new procedure, the Commission would similarly propose that the Council adopts an implementing decision – a legally binding measure – to determine a coordinated approach for reintroducing internal border controls, which would replace national measures. It applies to situations where a threat to public policy or internal security is said to imperil the overall functioning of the area without internal borders. The insertion of this new procedure would constitute a genuine novelty in the Schengen acquis. It spells out a supranationalized and legally binding avenue for reintroducing internal border controls. In this respect, the Commission’s proposal would allow EU institutions to determine which situations justified a collective reinstalment of temporary border controls in the Schengen area. In addition, it would not be subject to any maximum time limit, thereby allowing the controls to be maintained beyond the two-year period,Footnote 103 arguably limiting unilaterally reintroduced controls.
From a pro-integrationist perspective, this new procedure may be hailed as a first tentative step towards supranationalized governance of the Schengen regime of internal border controls. This should not, however, gloss over the fact that this amendment would constitute an additional avenue for reintroducing and continuing border controls. Supranationalization, in this sense, would come at the expense of yet another avenue for departing from the principled abolition of internal border controls. Against that backdrop, it may be concluded that recent efforts to reform Schengen, including the one currently proposed, propagate avenues for reintroducing internal border controls.
II. Varieties of Enforcement – Part of the Problem or Part of the Solution?
It may be remarkable to note that Member States’ decisions to reintroduce internal border controls have never been subject to direct scrutiny by the ECJ.Footnote 104 Although the Court had interpreted the relevant provisions in the Schengen Borders Code on several occasions, its jurisprudence results exclusively from indirect challenges in the context of the preliminary reference procedure.Footnote 105 Given the prevalence and persistence of reintroduced internal border controls, the absence of direct challenges to Member States’ reintroduction of internal border controls may raise eyebrows. It speaks to the principled reluctance of the Commission to initiate infringement procedures.Footnote 106 It may be correct to note that the Commission acts as a “mediator” between Member States rather than a true advocate of compliance with EU law, including the primary law objective of border-control free travel.Footnote 107
The extremely reticent role of the Commission in enforcing the applicable legal framework can be presented as one of the causes of the dire straits in which the Schengen area finds itself. Such a damning conclusion, however, does not grasp the complete picture of enforcement in the context of the Schengen acquis. It ignores the fact that supranational enforcement strategies may assume different degrees of formality and visibility, with the judicial phase of the infringement procedure being the most visible embodiment of centralized enforcement.Footnote 108 There is a spectrum of different means of enforcement, several of which can be detected in the governance of the Schengen area and decision-making in the context of reintroduced internal border controls specifically. This effect can prominently be exemplified with a view to the Schengen Evaluation and Monitoring Mechanism (1) and increased efforts to inspire a mode of transnational coordination and consultation (2).
1. Schengen Evaluation Mechanism and the Absence of Infringement Procedures
The Schengen acquis is home to a specific peer-to-peer monitoring arrangement, the so-called Schengen Evaluation and Monitoring Mechanism (SEMM). This mechanism includes Member State experts who work with the Commission to assess the implementation of practices on the ground.Footnote 109 Following recent reforms,Footnote 110 this collaboration draws heavily from on-site visits and indicates the steps to be taken if it detects shortcomings.Footnote 111 Substantively, the SEMM allows for monitoring of all matters relating to the Schengen acquis, including the oversight of external borders, visa policies, and measures at internal borders. A peer-to-peer evaluation of such nature does not produce legally binding effects, but its practical outcome should not be understated.Footnote 112 Such a mechanism may often pressure national authorities to bring back in line practices that conflict with EU law, even in the absence of litigation before the Court of Justice.Footnote 113
Formally (and evidently), the Schengen Evaluation and Monitoring Mechanism does not preclude the initiation of infringement procedures by the Commission. In legal terms, the two are independent mechanisms.Footnote 114 As Article 70 TFEU – the legal basis for the Council Regulation establishing the SEMM – clearly indicates, such an evaluation mechanism will exist “[w]ithout prejudice to Articles 258, 259 and 260 [TFEU].” Politically, however, the Commission’s reluctance to initiate infringement procedures may be explained, at least in part, by the existence of the SEMM. As De Somer elucidates, in matters intimately linked to sovereignty, such as the reintroduction of border controls, the Commission may feel naturally inclined to favor peer-to-peer reviews over legally binding centralized enforcement.Footnote 115 Accordingly, it may not be surprising that the Commission eschewed the initiation of infringement procedures and looked to peer-to-peer evaluations instead.
However, a gradual change of heart can be detected more recently. In its 2021 Schengen strategy, the Commission indicated that it was willing to “make a more systematic use of the synergies between the Schengen Evaluation and Monitoring Mechanism and infringement procedures.”Footnote 116 Accordingly, the assessment of whether to initiate an infringement procedure against a Member State will, prospectively, be informed by the outcome of the SEMM, effectively linking the two. This signals a growing willingness within the Commission to utilize the infringement procedure in relation to Member States’ decisions to reintroduce internal border controls. On a strategic level, this would approximate the Commission’s approach in the Schengen acquis to its general policy on infringement procedures.Footnote 117 Nonetheless, it should be noted that the Commission’s Schengen strategy is cautiously worded. There can be no foregone conclusion that the Commission would initiate an infringement procedure once the SEMM furnishes proof of shortcomings, nor does the Schengen strategy outline which misconduct would give rise to an infringement procedure.Footnote 118 Instead, it merely sketches in broad strokes that a “systematic” failure to follow recommendations or “persistent deficiencies” may bear these consequences without indicating which instances may qualify as such.Footnote 119
The Commission’s proposal may potentially allow for a more active use of the infringement procedure, nonetheless. The strengthening of the obligation to notify any reintroduction or prolongation of internal border controls may form a useful prerequisite in this regard. Following this limb of reform, Member States must clearly spell out the reasons underlying their decision, substantiate their conclusion with relevant data, and – where border controls have been in place for six months – carry out a risk assessment.Footnote 120 This may be viewed as an attempt to improve previous practices of half-hearted justifications for the reintroduction of internal border controls.Footnote 121 While this need not impel the Commission to initiate infringement procedures, it allows for a clearer appraisal of the reasons that underlie internal border control measures, informing the Commission’s assessment of their proportionality and necessity.
2. Coordination and Consultation
Against the backdrop of the Commission’s hesitance to initiate infringement procedures, recent developments in the governance of the Schengen area focus on less formalized enforcement methods. This reflects a general trend in the Commission’s political strategy – to reduce the legal layer of enforcement and look for other ways of exerting pressure on non-conforming Member States.Footnote 122 The establishment of the Schengen Forum may serve as a case in point. It centers on the idea of creating an esprit de corps among national and supranational stakeholders. Through biannual meetings, the Commission, Members of the European Parliament, national ministers of justice and home affairs, representatives of the competent EU agencies, and national authorities tasked with the practical implementation of the Schengen acquis are encouraged to exchange views on a regular basis. This may have the effect that national decision-makers become more aware of the transnational implications of unilateral decisions in this field of law and – above all – in the context of reinstated internal border controls.Footnote 123
From a purely legal perspective, such forms of coordination and political steering may often be overlooked or discredited as desperate attempts to revive the principled absence of internal border controls in the Schengen area. However, as experiences from the first phase of the COVID-19 pandemic illustrate, the effects of such a coordination should not be ignored.Footnote 124 As a form of “coordinative Europeanization,” it may create significant repercussions in practice.Footnote 125 First, as the Commission highlights, the discussions in the Schengen Forum fed into its Schengen Strategy and may, by extension, have left a mark on the proposed reform of the Schengen Borders Code.Footnote 126 Second, the effects of such coordination, in conjunction with other factors, may explain the reluctance of several Member States to reintroduce internal border controls in the face of a new COVID-19 variant in December 2021.Footnote 127
To some extent, the proposed reform of the Schengen Borders Code would formalize the practice of coordination. Once a Member State considers reinstating or prolonging internal border controls, the new legal framework would allow the Commission to initiate a consultation process and to call for joint meetings of the relevant stakeholders.Footnote 128 While the representatives of the Member State contemplating such a measure are prompted to take “utmost account of the results of such consultation,” there is no legal obligation to lift internal border controls. Rather, the effects of this form of coordination materialize in the absence of legal enforcement. The Commission may thereby be able to exert pressure on national decision-makers without having to utilize the infringement procedure.
D. Risking Schengen as a Citizenship Project?
The proposed changes to the Schengen acquis are a prime example of “cooperative re-bordering.”Footnote 129 The combination of amendments pandering to national security concerns, elements of gradual supranationalization, and forms of cooperation illustrates that reaffirming Member States’ discretion to adopt unilateral decisions need not necessarily amount to disintegration. To the contrary, the Commission’s reform proposal incentivizes transnational cooperation, for instance, of police authorities in border regions or formalizes supranational cooperation, in so-called Schengen fora and elsewhere.
This re-bordering does not exclusively relate to border controls proper. Although the Commission’s reform expands Member States’ latitude to formally reintroduce border controls, one of its main foci concerns the propagation of alternative measures that would reduce the perceived need for formally reintroduced internal border controls. As the preceding analysis suggests, the reform proposal particularly promotes (police) spot-checks in border regions and practices of monitoring and surveillance through automatized data collection and processing. This alludes to the fact that the nature of border controls inside the Schengen area is continuously changing. Static checks at borders are gradually (but not ultimately) lifted in favor of more flexible and targeted measures in border regions and may be complemented by a relatively intangible mode of control that centers on the collection of data on cross-border travels.
This reconceptualization of internal border controls has significant advantages in practice. It allows national authorities to safeguard internal security and public order while limiting disturbances to traffic and nuisance for cross-border travellers to a minimum. However, it may risk the spatial experience to which Schengen lends its name, thereby undermining the identity-creating dimension of Schengen integration. The Commission’s reform proposal puts forward a logic of Schengen integration that focuses primarily on reducing waiting times and disruptions to cross-border travel rather than maintaining an area in which controls at borders are largely absent (I). This raises the question of how far such a reconceptualization of border controls could be compatible with the constitutional foundations of the Schengen acquis, especially in light of the Court’s recent jurisprudence (II).
I. Competing Logics of Schengen: Reducing Waiting Times or a Genuine Abolition of Controls?
As the preceding analysis suggests, the Commission’s latest Schengen reform proposal advocates in favor of measures that keep the security functions of borders largely intact while limiting obstacles to cross-border mobility to a minimum. Arguing for increased use of alternative measures – such as spot-checks in border regions or automatized data collection and processing – prioritizes relatively flexible forms of control over the static and sweeping reintroduction of border controls. On an intermediate level of abstraction, however, this alludes to a conflict of logics that underlie Schengen integration. It raises the question of whether Schengen should be viewed as a project that principally does away with controls at borders or whether it is, in the alternative, primarily aimed at reducing waiting times and removing obstacles to cross-border mobility.
This question is no trifle. As Salomon and Rijpma forcefully argued, Schengen integration has been an identity-creating project from the outset, epitomizing a spatial experience of unchecked cross-border mobility.Footnote 130 It served the political vision of eradicating borders as a “concrete reminder to the ordinary citizen that the construction of a real European Community is far from complete” – as the Commission’s seminal White Paper on the completion of the internal market famously put it.Footnote 131 However, the Commission’s reform proposals risk tainting that vision. Due to the propagation of new avenues for reintroducing internal border controls, coupled with a reluctance to initiate infringement proceedings, it is questionable whether this reform would discourage Member States from reintroducing internal border controls.Footnote 132 In addition, it incentivizes forms of control that may be lawful under the Schengen acquis but may disturb the political vision of an area where crossing borders has become largely imperceptible. While control rarely occurs at borders, checks in trains, buses, and roadsides will become more frequent following current reforms of the Schengen acquis. In this vein, the changed nature of border control, particularly its territorial expansion into border regions, may call into question the spatial experience to which Schengen lends its name.
By enabling data collection and processing practices, reforms would consolidate the transformation of Schengen’s internal borders into so-called “smart borders.”Footnote 133 Since such a form of control features imperceptibly, it may be viewed as preferential to conventional modes of control, given its limited effect on the spatial experience to which Schengen lends its name as an identity-creating project. Such practices of collecting and processing data on cross-border mobility may be said to create a chilling effect on free movement and should not be ignored. Against this backdrop, the Court was correct to note that applying such intangible forms of control may constitute restrictions to the fundamental right to free movement, as enshrined in Article 45 of the Charter.Footnote 134 Restrictions of that nature may be justified, provided they pursue a legitimate objective and satisfy the requirements of necessity and proportionality. This may not, however, be read as a blanket check to automate the collection and processing of travellers’ data at internal borders.Footnote 135
II. Pitfalls of Decentralized Enforcement and the ECJ’s “Administrative Mindset”
The Commission’s reluctance to initiate infringement procedures in the context of reintroduced and perpetually prolonged internal border controls is partly mitigated by increased efforts of decentralized enforcement. In the absence of direct actions, indirect challenges have presented themselves as a promising avenue for bringing national practices in line with the requirements of EU law.Footnote 136 The judgment in Landespolizeidirektion Steiermark is a case in point. Owing to the erga omnes effect of the Court’s jurisprudence, the resulting interpretation creates binding effects on all Member States.Footnote 137
Whereas such a strategy can be promising in an individual case, it may not stop other Member States’ practices from going unatoned. This effect is rooted in the traditional separation of tasks in the preliminary reference procedure. While the Court of Justice leaves the application of its interpretation in the individual case to the referring national court, there are different degrees of instructing the latter.Footnote 138 In Landespolizeidirektion Steiermark, for instance, the ECJ got as close as it possibly gets to dictating the outcome of the assessment, emphasizing that the files before it suggested that Austria’s decision to keep in place internal border controls was incompatible with Schengen law. It added that this question was ultimately for the referring national court to determine.Footnote 139 For the other Member States who had kept in place internal border controls on a quasi-permanent basis, this left ajar a window of deniability, supporting the argument that the situation at their internal border differed from the factual situation at the Austrian-Slovenian border that gave rise to the Court’s judgment in Landespolizeidirektion Steiermark.
This may explain why all potential culprits – including Austria – kept internal border controls in place after the ECJ’s judgment had been rendered.Footnote 140 This indicates that the preliminary reference procedure may be structurally ill fit for responding to de facto fragmentations where supranational rules largely reaffirm national executive discretion.Footnote 141 This is the case under the current legal framework and is unlikely to change following the reform of Schengen. The latitude afforded to national decision-makers allows them to argue that the factual preconditions for reintroducing border controls vary from those in Landespolizeidirektion Steiermark. Rather, the currently discussed reform would undermine efforts toward decentralized enforcement by doing away with some of the most tangible standards limiting Member States’ discretion, particularly the procedural time limits for reintroducing border control.
Moreover, the Court’s jurisprudence may display a general unwillingness to infer constitutional limits for Schengen reform. This aligns with its earlier jurisprudence regarding abolishing internal border controls, where the Court had been reluctant to upset the political compromise brokered in negotiations regarding the Treaty of Amsterdam.Footnote 142 More recently, the same impetus may be detected in the Court’s relative silence as regards potential constitutional limits to Schengen reform. Admittedly, the preceding investigation puts forward the view that some constitutional limits may be inferred from the Court’s jurisprudence, specifically the requirement to strike a “fair balance” between competing provisions of primary law. Analytical precision, however, merits the acknowledgment that the Court’s jurisprudence is related to the legal framework de lege lata. It is far from evident that it would apply the same standard as a constitutional limit to the EU legislature’s discretion in future cases.Footnote 143 With respect to potential constitutional limits to the sweeping collection and processing of cross-border mobility at internal borders, it may be worth noting that the Court centers its reasoning on an interpretation of secondary law instruments, in casu of the PNR Directive, and less so on constitutional guarantees limiting the adoption of such instruments.Footnote 144
The reluctance to spell out constitutional limits to the reform of Schengen may thus bear testament to the “administrative mindset” underpinning the Court’s jurisprudence in the field of EU migration law.Footnote 145 Following this mode of reasoning, the Court’s focus rests primarily on interpreting secondary law and verifying the intentions of the EU legislature. For the Court, reasoning of such nature has significant advantages. It allows judges to tap into the “external legitimacy” it derives from its relationship with political institutions.Footnote 146 However, with respect to the currently discussed reform of the Schengen area, such a strategy is risky. It appears to disregard the nature of Schengen as an identity-creating project. In the absence of a constitutional corrective to the currently discussed Schengen reform, chances are that the proposed amendments would betray the notion of a “fair balance” between different constitutional specifications, particularly Member States’ responsibilities to safeguard national security and the abolition of internal border controls. By prioritizing the security concerns of national decision-makers and propagating new supranationalized avenues to reintroduce internal border controls, the constitutionally warranted objective of abolishing internal border controls may be upset.
E. Conclusion
The case for reforming the Schengen acquis has become increasingly cogent in recent years. Following a series of crises, several Member States have reintroduced internal border controls on a quasi-permanent basis. As the preceding investigation suggests, the latest attempt to reform Schengen would not revive the equilibrium of the different visions that enabled Schengen’s successes during earlier phases of its evolution. Rather, by endorsing the security concerns of national actors, it reaffirms the vision of Schengen as a security project. This effect can be detected in several reform elements, including the incorporation of new grounds for reintroducing internal border controls, the relaxation (and possibly eradication) of time limits for the duration of these controls, and the propagation of alternative control measures in border regions.
Whereas this would consolidate Member States’ broad discretion in safeguarding internal security and public order, the latest reforms of Schengen should not be mistaken for renationalization. Rather, these discretionary powers are increasingly embedded in supranational governance structures. The Commission’s latest reform attempts to promote this development, inter alia, by establishing the Schengen Forum or spelling out a new supranational procedure to collectively reintroduce internal border controls. This suggests that current reform efforts may genuinely bring about a gradual supranationalization without reducing the national decision makers’ discretion to adopt measures aimed at safeguarding internal security.
On the flip side, these elements of innovation should not gloss over the fact that the proposed reforms would call into question the political vision of Schengen as an identity-creating project. Schengen’s success may be rooted, inter alia, in the fact that abolishing border controls removed a “concrete reminder to the ordinary citizen that the construction of a real European Community is far from complete.”Footnote 147 The currently discussed reform would undo this political vision of Schengen. First, it cannot be a foregone conclusion that Member States will lift internal border controls as a corollary thereof. Rather, the Commission’s reform proposes to significantly extend national decision makers’ discretion, thereby relaxing those standards that have imposed effective limits to the reintroduction of internal border controls on a quasi-permanent basis in the past.Footnote 148
Moreover, the reassertion of Schengen as a pan-European security project coincides with the emergence of new forms of control. Besides collecting data on cross-border mobility, which features in a relatively intangible fashion, the currently proposed reform of Schengen incentivizes police checks in the border regions. As a corollary, it is not unreasonable to presume that police authorities will resort to spot checks in trains and elsewhere as standard practice. In this sense, citizens will likely be reminded of the incomplete construction of the Union, even if they are not, as a matter of principle, personally interrogated or stopped. While the reform of Schengen may not necessarily impair the economic rationale of uninterrupted cross-border mobility, it betrays the idea of an area where controls are abolished as a political project.
The preceding investigation argues that this criticism finds support in EU constitutional law. Whereas the Court displays a certain reluctance to infer limits to the EU legislature’s discretion to reform the Schengen acquis, its recent jurisprudence may indicate that the EU legislature is obliged to strike a fair balance between competing provisions of primary law when drafting a reform of Schengen; namely, the objective of abolishing internal border controls and Member States’ responsibility to safeguard national security and law and order. Presuming that conclusion is correct, this constitutional requirement does not forego political choices. On the contrary, the EU legislature would retain broad discretion to amend the relevant legal framework. However, this discretion is not without limits: an interpretation that would effectively do away with any safeguards ensuring the temporary nature of reintroduced internal border controls, such as maximum time periods, would exceed what is permissible under EU constitutional law. In that respect, the currently proposed reforms may be said to conflict with the constitutionally warranted balance of Schengen’s different visions.
Acknowledgements
None.
Funding Statement
This research was supported by the nccr – on the move funded by the Swiss National Science Foundation grant 51NF40-205605.
Competing Interests
The authors have no conflict of interest.
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