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In the Name of COVID-19: Schengen Internal Border Controls and Travel Restrictions in the EU

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In the Name of COVID-19: Schengen Internal Border Controls and Travel Restrictions in the EU STUDY Requested by the LIBE committee In the Name of COVID-19: An Assessment of the Schengen Internal Border Controls and Travel Restrictions in the EU Policy Department for Citizens’ Rights and Constitutional Affairs Authors: Sergio Carrera and Ngo Chun Luk Directorate-General for Internal Policies PE 659.506 - September 2020 EN In the Name of COVID-19: Schengen Internal Border Controls and Travel Restrictions in the EU Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, assesses the mobility restrictive measures adopted by the EU and its Member States in the fight against COVID-19. It examines the reintroduction of Schengen internal border controls and intra- and extra-EU travel restrictions. It assesses their compatibility with the Schengen Borders Code, including proportionality, non-discrimination, privacy and free movement. The research demonstrates that policy priorities have moved from a logic of containment to one characterized by a policing approach on intra-EU mobility giving priority to the use of police identity/health checks, interoperable databases and the electronic surveillance of every traveller. It concludes that Schengen is not in 'crisis'. Instead there has been an ‘EU enforcement and evaluation gap’ of Member States compliance with EU rules in areas falling under EU competence. This document was requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs. AUTHORS Sergio Carrera (Senior Research Fellow and Head of the Rights and Security Unit at the Centre for European Policy Studies, CEPS; Part-Time Professor at the Migration Policy Centre (MPC), European University Institute (EUI); and Visiting Professor at the Paris School of International Affairs, PSIA, Sciences Po) Ngo Chun Luk (Researcher at CEPS) ADMINISTRATOR RESPONSIBLE Udo BUX EDITORIAL ASSISTANT Monika Laura LAZARUK LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email : [email protected] Manuscript completed end of August 2020 © European Union, 2020 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image used under licence from Stock.Adobe.com IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs CONTENTS LIST OF ABBREVIATIONS 6 LIST OF BOXES 7 LIST OF FIGURES 7 LIST OF TABLES 7 EXECUTIVE SUMMARY 8 1. SETTING THE SCENE: FROM CONTAINMENT TO POLICING MOBILITITY AS A RESPONSE TO COVID-19 14 2. REINTRODUCTION OF INTERNAL BORDER CONTROLS: STATE OF PLAY 18 2.1. Schengen countries with COVID-19 temporary internal border controls still in place 18 2.2. Schengen countries that have introduced temporary internal border controls due to COVID- 19 that have since been lifted or expired 19 2.3. Border controls without SBC notifications 22 3. INTRA-EU TRAVEL BANS AND OTHER TRAVEL RESTRICTIONS 24 3.1.1. Intra-EU+ mobility: the restrictions imposed 25 3.1.2. Comparative observations on intra-EU+ entry restrictions 33 3.1.3. Enforcement and sanctioning of violations of COVID-19 intra-EU+ entry restrictions 37 4. EU TRAVEL BAN 41 4.1. EU+ entry restrictions: Gradual reopening of the EU’s external borders for non-essential travel 41 4.2. Lifting of EU travel ban in line with Council Recommendation (EU) 2020/912 42 4.3. Entry for non-essential travel from third countries deviating from Council Recommendation (EU) 2020/912 43 5. ASSESSING THE LEGALITY OF BORDER CONTROLS AND TRAVEL BANS IN THE EU 48 5.1. Applicable EU Legal Criteria: The Schengen Borders Code and EU Free Movement Law 48 5.2. Compatibility with EU Procedural Criteria 53 5.2.1. Reintroducing Internal Border Checks 53 5.2.2. Intra-EU Travel Bans and Restrictions 59 5.2.3. EU Travel Ban to non-Schengen Countries 64 5.3. Compatibility with EU Substantive Criteria: Testing Proportionality 68 5.3.1. Effectiveness 68 5.3.2. Fundamental Rights 70 6. CONCLUSIONS AND RECOMMENDATIONS 77 REFERENCES 81 4 PE 659.506 In the Name of COVID-19:.An Assessment of the Schengen Internal Border Controls and Travel Restrictions in the EU ANNEX 1. MEMBER STATES’ NOTIFICATIONS UNDER THE SCHENGEN BORDERS CODE DUE TO COVID-19 90 ANNEX 2. ENTRY RESTRICTIONS IN THE EU AND SCHENGEN ASSOCIATED COUNTRIES 160 Annex 2.1. Legislative basis under national law for COVID-19 related restrictive entry measures (updated to 24 August 2020) 160 Annex 2.2. Essential reasons for which entry of third country nationals is permitted by EU+ countries (updated to 24 August 2020) 168 PE 659.506 5 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs LIST OF ABBREVIATIONS AFSJ Area of Freedom, Security and Justice BGBl. Bundesgesetzblatt (AT) CJEU Court of Justice of the European Union Coreper Committee of the Permanent Representatives of the Governments of the Member States to the EU COVID-19 Coronavirus disease 2019 e.g. Exempli gratia (for example) ECDC European Centre for Disease Prevention and Control EEA European Economic Area EMN European Migration Network EP European Parliament EU European Union EUCFR EU Charter of Fundamental Rights GDPR General Data Protection Regulation IPCR Integrated Political Crisis Response LIBE Committee on Civil Liberties, Justice and Home Affairs NDPA National Data Protection Authority SARS-CoV-2 Severe acute respiratory syndrome coronavirus 2 SBC Schengen Borders Code SEM Schengen Evaluation Mechanism SIS II Schengen Information System II TFEU Treaty on the Functioning of the European Union WHO World Health Organization 6 PE 659.506 In the Name of COVID-19:.An Assessment of the Schengen Internal Border Controls and Travel Restrictions in the EU LIST OF BOXES Box 1: Selected (implicit) references to ‘serious threat to public policy or internal security’ of COVID-19 in Schengen countries’ notifications under SBC 58 LIST OF FIGURES Figure 1: Timeline of temporary reintroduction and lifting of internal border controls (as of 24 August 2020) 20 Figure 2: COVID-19 related internal border controls notified under SBC as of 24 August 2020 22 Figure 3: Types of COVID-19 restrictive measures adopted by EU Member States and Schengen countries for intra-EU+ travel (as of 24 August 2020) 34 Figure 4: Legal basis under Schengen Borders Code for the temporary reintroduction of internal border controls in light of COVID-19 epidemic 54 Figure 5: Third countries exempted from EU Travel Ban in light of visa requirement (updated to 24 August 2020) 67 LIST OF TABLES Table 1: Geographical scope of COVID-19 intra-EU+ entry restrictions (as of 24 August 2020) 35 Table 2: Sanctions (fines and prison sentence) for non-compliance with COVID-19 restrictive measures in the EU+ countries 37 Table 3: List of third countries from which non-essential travel is permitted (as of 24 August 2020) 46 Table 4: Infections per 100 000 inhabitants in the last 14 days in the EU+ (on 24 August 2020) 60 PE 659.506 7 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs EXECUTIVE SUMMARY Background The abolition of internal border controls and the non-discriminatory treatment of individuals when exercising the freedom of movement is one of the most emblematic characteristics of the European Union (EU). The COVID-19 pandemic has shone a spotlight on the Union’s free movement foundations and their legitimation and reignited the debate about whether the Schengen area is in need of reform or indeed in ‘crisis’. The Schengen area is anchored in a common set of codified rules enshrined in the Schengen Borders Code (SBC). The Code still leaves the possibility for Member States to temporarily and exceptionally reintroduce internal border controls under well-justified conditions and to carry out non-systematic police spot checks inside border areas. Nevertheless, the latest (2013) legislative reform of the Schengen regime (Schengen Governance Package) reinforced EU scrutiny so as to ensure an objective, efficient and principled application of the Schengen acquis by Member States. Safeguarding EU Treaty principles – including the rule of law, democracy and fundamental rights – constitutes preconditions for ‘merited or deserving trust’ in the scope of Schengen cooperation. The Schengen Evaluation Mechanism (SEM) and the EU’s oversight of Member States’ reintroduction of internal border controls constitute crucial trust-enhancing factors in the functioning of the Schengen regime. Aim This study assesses the state of play of the Schengen area, with a particular focus on the reintroduction of internal border controls and (intra- and extra-EU) travel restrictions related to the COVID-19 pandemic. It conducts a legality test on all these measures in light of the SBC and EU free movement legislation, paying attention to their compliance with the principles of proportionality and non- discrimination and the EU Charter of Fundamental Rights (EUCFR). The study ‘unpacks’ the framing of the current picture that sees ‘Schengen being in crisis’ by showing that this is a problematic view. It identifies the actual challenges characterising the implementation, evaluation and enforcement of common EU rules and principles that the pandemic has made visible. This study aims to provide an independent, research-based input to the European Parliament (EP) in its assessment of the state of the Schengen regime in view of the Annual Report on the Functioning of the Schengen area that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) draws up.
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