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Covid-19 Bends the Rules on Internal Border Controls – Yet Another Crisis

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Covid-19 Bends the Rules on Internal Border Controls – Yet Another Crisis APRIL 2020 281 COVID-19 BENDS THE RULES ON BORDER CONTROLS YET ANOTHER CRISIS UNDERMINING THE SCHENGEN ACQUIS? Saila Heinikoski APRIL 2020 281 COVID-19 BENDS THE RULES ON BORDER CONTROLS YET ANOTHER CRISIS UNDERMINING THE SCHENGEN ACQUIS? • Free movement within the Schengen Area has been challenged in recent years by national measures: from internal border checks after the ‘migration crisis’ to the closure of borders in the Covid-19 crisis. • This is the first time in the history of Schengen that member states have categorically refused entry to other EU citizens who are not registered residents or cross-border workers. • Seventeen Schengen countries have submitted a notification on reintroducing internal border control due to Covid-19. • The use of Schengen provisions was creative: 12 states justified their internal border controls as a case requiring immediate action (Art. 28), France and Denmark expanded their already existing internal border controls (Art. 25), Finland appealed to the ‘fore- seeable event’ clause (Art. 25), and Slovakia and Poland introduced ‘healthcare-police measures’ (Art. 23) before launching border controls (Art. 28). • The crisis illustrates the need to reform Schengen in order to maintain the legitimacy of commonly agreed rules. SAILA HEINIKOSKI Senior Research Fellow European Union research programme Finnish Institute of International Affairs ISBN 978-951-769-635-7 ISSN 1795-8059 Language editing: Lynn Nikkanen Cover photo: Håkan Dahlström/Flickr (CC BY 2.0) Desaturated The Finnish Institute of International Affairs is an independent research institute that produces high-level research to support political decisionmaking and public debate both nationally and internationally. All manuscripts are reviewed by at least two other experts in the field to ensure the high quality of the publications. In addition, publications undergo professional language checking and editing. The responsibility for the views expressed ultimately rests with the authors. COVID-19 BENDS THE RULES ON BORDER CONTROLS YET ANOTHER CRISIS UNDERMINING THE SCHENGEN ACQUIS? INTRODUCTION It is important to note that although borders in the Schengen Area are closed, EU citizens’ formal right to Free movement is a fundamental aspect of Europe- free movement remains. EU citizens residing in an- an integration. It has expanded from the right to free other EU country do not have to leave their country movement of workers in the European Coal and Steel of residence, suggesting that the right to free move- Community (1952) to EU citizens’ right to cross bor- ment has de facto become the right to stay put. The ders without passport control in the Schengen Area. Free Movement Directive (2004/38/EC) grants all EU The Schengen Area took effect on 26 March 1995 when citizens the right to reside in any EU country for three Belgium, France, Luxembourg, the Netherlands, Spain months without registration. After that, they have to and Portugal officially removed internal border controls demonstrate that they are working, studying, applying between the countries.1 When we look at Schengen 25 for work or have the means not to become a burden on years later, in spring 2020, the vision of a borderless the social security system of the state of residence. In Europe seems to have experienced a serious setback. All addition to public policy and public security, the Free 26 Schengen countries2 have temporarily closed their Movement Directive allows restrictions based on pub- external borders and 18 countries are conducting inter- lic health, primarily in the case of diseases ‘with epi- nal border checks, 17 of them due to Covid-19. Several demic potential as defined by the relevant instruments countries have even set up domestic ‘border controls’ of the World Health Organisation’ (Article 29(1)). On by sealing off certain regions within their country in the basis of public health, countries could restrict the order to curb the spread of Covid-19. Lorry tailbacks entry of EU citizens into a country or expel an EU cit- have been reported at European internal borders and EU izen that has resided for less than three months in the citizens are struggling to return to their home countries. country, but such expulsions have not been publicly While the scale of the current restrictions is unprece- reported. Even though the right to free movement re- dented, migration pressure since 2015 has already chal- mains formally unaffected, this is the first time in the lenged the functioning of the Schengen system as six history of Schengen that EU citizens have been cate- countries (Germany, France, Austria, Sweden, Denmark gorically prevented from crossing European borders. and Norway) have conducted border checks for much longer than allowed by the Schengen Borders Code. This Briefing Paper discusses the reasons for and SCHENGEN RULES CHALLENGED implications of internal border controls established in EVEN BEFORE COVID-19 order to prevent the spread of the coronavirus. It will outline and analyse border controls established before The Free Movement Directive regulates people’s right the current Covid-19 situation and in relation to it, and to free movement, which in practice refers to the right the impact of Covid-19 on the Nordic Passport Union. to reside in other EU countries (not formally affected The paper will conclude with an assessment, which sug- by Covid-19). The Schengen Borders Code (SBC, Regu- gests that the re-imposition of border controls in light lation 399/2016), in turn, stipulates conditions on bor- of the current and past crises speaks for a significant de- der controls, such as the temporary reintroduction of gree of flexibility within the EU rules on borders, while internal border controls. The SBC entered into force the imposed Covid-19 measures will further highlight on 13 October 2006. It allows internal border controls the need to consider Schengen reforms. only in cases threatening public policy and the inter- nal security of a state, but not all identity checks are 1 France actually extended its border controls for another year, citing security threats related to the 1995 bomb attacks in Paris. See e.g. Siebold, Angela (2013), considered internal border controls. Article 23 allows Between Borders: France, Germany, and Poland in the Debate on Demarcation and Frontier Crossing in the Context of the Schengen Agreement. In Arnaud countries to conduct police checks inside the territory, Lechevalier and Jan Wielgohs (eds.), Borders and Border Regions in Europe – Changes, Challenges and Chances, 129–144, Bielefield: Transcript Verlag. provided that they do not have border control as an 2 Out of the current EU member states, Ireland is the only country that has a per- manent opt-out from the Schengen acquis, whilst the most recent EU member objective. Such controls do not have to be reported to states, Croatia, Bulgaria, Romania and Cyprus, have not yet been accepted into the area. The Schengen Area also includes four countries that are not part of the other member states. In contrast, if a country decides EU: Switzerland, Norway, Iceland and Liechtenstein. APRIL 2020 3 Cases of internal border controls in the Schengen Area, 2006-2020 30 20 17 10 10 10 10 4 11 4 1 9 6 2 1 6 2 1 1 2 5 5 2 1 1 3 2 2 2 3 2 2 2 0 1 1 1 1 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 High-level meeting Protest/mass event Terrorist threat Secondary movement of third-country nationals Covid-19 Figure 1. Since 2015, internal border controls have been reintroduced three times more often than they were during the first nine years. Source: Notifications of the member states to the EU on internal border controls to launch actual border controls at internal borders, in the case of France.4 The countries first established the SBC provides three legal bases, which all require border controls as cases requiring immediate action a notification.3 Article 25 of the SBC allows the rein- (Article 28), but after the two-month deadline, they troduction of borders in foreseeable events, in which had to shift to Article 25, which allows a six-month case the notification should be submitted at least four period. France has systematically referred to the ter- weeks in advance, or later if the circumstances become rorist threat in all of its notifications since the border known later. Based on Article 25, countries may first controls were first established after the terrorist at- reintroduce border controls for 30 days and prolong tacks in Paris in November 2015. The other five coun- them for up to six months. Article 28, in turn, allows tries could make use of the Council recommendation countries to reintroduce border control in cases re- based on Article 29 from May 2016 to November 2017. quiring immediate action, with controls possible in- Since then, all countries have submitted a notifica- itially for 10 days, and thereafter for periods of up to tion of prolongation every six months, appealing again twenty days for a maximum of two months. In a situ- to Article 25. According to Deutsche Welle, a repre- ation putting the overall functioning of the Schengen sentative of the German Interior Ministry interpreted Area at risk, Article 29 provides the Council with the that the lime limits would be reset every six months opportunity to recommend that certain countries re- and apply only to each specific notification.5 Howev- introduce internal border control for a maximum of six er, there is no such mention in the Schengen Borders months, a period that is renewable three times. Code. This ignorance of the maximum periods under- As shown in Figure 1, a turning point in the internal mines the legitimacy of the Schengen acquis, especially border controls was the so-called migration crisis in as the member states have not been able to reach a po- 2015, since which time six Schengen countries (Ger- sition on the Commission proposal issued in Septem- many, France, Austria, Denmark, Sweden and Norway) ber 2017 to amend the Schengen Borders Code either have had internal border controls in place at specific (COM(2017) 571 final).
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