NO. 44 OCTOBER 2018 Introduction

The Future of Schengen Internal Border Controls as a Growing Challenge to the EU and the Nordics Raphael Bossong and Tobias Etzold

The free movement of people is considered one of the key achievements of the Euro- pean Union. Even though the Schengen Agreement has survived the most difficult phase of the refugee crisis, it is now under threat again. It is no longer possible to reconcile temporary internal border controls that , , Austria, Sweden, Denmark and Norway introduced in 2015 with the stipulated deadlines and proce- dures of the Schengen regulation. The common European regime is increasingly at risk due to concerns over narrow domestic policies or that individual countries, in particular Denmark, will exit. Such a potential break would be drastic, especially for the Nordic states where the principle of open internal borders has previously been practiced for decades, but whose recent controls have so far received less attention in the European debate. A compromise is, therefore, urgently required to fully restore the free movement of people in the Schengen area whilst, at the same time, taking greater account of the security interests of the member states. As the main trigger for border controls, Germany has a key role to play here.

During the height of the refugee crisis be- This sharply contradicted the principle of a tween autumn 2015 and spring 2016, six borderless North, not least as these actions Schengen member states introduced con- were hardly coordinated with each other. trols at some of their internal European Meanwhile, France was forced to declare borders. Germany began on 13 September a national state of emergency due to the 2015 with controls at its border with terrorist attacks of 13 November 2015. Paris Austria in order to better record the influx also reintroduced border controls because of people seeking protection. A few days several members of the terrorist cell had later, Austria followed suit on its southern previously moved freely throughout . border and introduced measures to control At the end of 2015, a Schengen evaluation the ‘Balkan Route’. Other main destination conducted by the EU Commission con- countries for asylum seekers included Swe- firmed that there were severe systemic fail- den, Denmark and Norway and, in Novem- ures in Greece’s external border controls. ber 2015, they took similar steps to monitor This led to discussions whether to suspend the most important land, bridge and ferry Greece as a full member of the Schengen links with each other and towards Germany. zone. To avert this step, the Council decided

in May 2016 to allow internal border con- opment could have. The free movement of trols as a compensatory measure. European citizens is generally considered This mechanism was only set up in 2013 the EU’s greatest achievement. And even in response to a previous Schengen regime after the closure of the Balkan Route and crisis triggered by the Arab Spring. In 2011, the agreement with Turkey in the spring of large numbers of North African nationals 2016 marked a reversal in irregular immi- were entering and travelling further gration, the Brexit referendum in June of into the EU. In response, France set up uni- that year underlined the profound damage lateral border controls to Italy, which firmly that the temporary loss of control at exter- protested against this measure. Only after nal borders had done to the legitimacy of two years of negotiations did the EU find a the EU. Against this background, the pro- compromise to this confrontation. Accord- longed internal border controls enforced by ing to the recently introduced Article 29 of six Schengen member states were seen as the Schengen Code, internal border controls a necessary and proportionate response. can only be maintained for more than six In addition, the six states minimised or months and up to two years if the EU Coun- gradually adjusted the scope of these con- cil of Ministers recognises, by a qualified trol measures. While Germany only moni- majority, that there is a systematic threat to tored a small number of border crossings the entire Schengen zone. Such a decision with Austria, in May 2017, for example, the was taken for the first time in May 2016 Swedish government decided to switch from with respect to the situation in Greece and systematic identity checks on all persons was subsequently used by Germany, Austria, crossing the border from Denmark to Swe- Denmark, Sweden and Norway. den to only random checks on train passen- France, on the other hand, took a different gers. This significantly relieved pressure on path and extended its border controls by the cross-border economy and the numerous referencing the continuing terrorist threat. commuters in the greater Copenhagen-Malmö To achieve this, French authorities repeat- area. At the same time, new technical sys- edly invoked Article 25 of the Schengen tems enabled additional security controls regulation which grants internal border without major traffic disruptions. Spurred controls for reasons of national security for on by the Stockholm terrorist attack in April up to six months. Given the renewed, seri- 2017, automatic license plates scanners and ous terrorist attacks in Brussels on 22 March X-ray cameras were installed to monitor the 2016, this interpretation of the Schengen traffic across the Øresund Bridge. regulation and consecutive use of legal time limits was not openly criticised. Rather, the EU Council of Ministers pushed for addi- Smouldering crisis since tional security measures, in particular for autumn 2017 obligatory and IT-supported checks on all persons crossing external Schengen borders. However, the European Commission recom- At the time, decision-makers were driven mended at the time that all remaining sta- by the fear that the Schengen area could tionary internal border controls should be break up completely. The trade and welfare phased out by winter 2017. Although ir- losses associated with the reintroduction of regular immigration via Libya to Italy did comprehensive internal border controls were increase, it could no longer be argued estimated to be at least 0.15 percent of EU that this was a serious systemic risk to the gross national product or 63 billion euros Schengen zone. Most irregular migrants per year. However, the fences erected on were rescued from ships in distress by Euro- Hungary’s and Slovenia’s external Schengen pean vessels and registered in EU hotspots, borders – as well as a section of Austria’s in contrast to the peak of the migration internal border – were a particularly dras- crisis in 2015. Moreover, by November 2017, tic illustration of the impact such a devel- extending border controls for a fourth time

SWP Comment 44 October 2018

2 would no longer legally be permissible under on the provisions of the Dublin regulation. Article 29 of the Schengen Code. As a com- Yet if one considers the time limits stipu- promise, the Commission suggested the pos- lated by the Schengen regulation, the new sibility of intensifying police controls in bor- bilateral agreements on the speedy return der areas. Finally, the French government of asylum seekers that are caught at the also lifted its national state of emergency German-Austrian border to Spain, Greece in November 2017, which, until then, had and – possibly soon also – Italy, should legitimated its consecutively prolonged bor- quickly become inapplicable in practice. der controls for reasons of national security. In the Nordic countries, too, there are Nevertheless, none of the six Schengen increasing signs of border controls becom- states concerned was willing to follow the ing permanent. The Danish government’s Commission recommendation and reinstate current budget sets aside a good 30 million the full freedom of movement. Instead they euros each year for border management. proposed – without Sweden – to extend These investments could also result in new the maximum permissible duration of tem- border installations on the Danish-German porary border controls under Article 29 from land border. Almost all political parties in two to four years. However, neither this ini- Denmark and the majority of the popula- tiative nor a compromise proposal by the tion are in favour of retaining border con- Commission (three years) found enough trols – a position that has been boosted political support among the other Schengen by ongoing political backing for border con- members. In response, Germany, Austria, trols by larger countries such as Germany. Denmark, Sweden and Norway moved from Without this support, it would be harder for Article 29 to Article 25 of the Schengen Code Denmark to assert its interests in the EU. in an attempt to legalise the maintenance The Swedish government previously of internal border control measures beyond declared its willingness to return to regular November 2017. By doing so, they were freedom of movement as soon as possible. following the precedent set by France and During its parliamentary election campaign emphasised that the threat of international in the summer of 2018, however, the red- terrorism remained very high. In practice, green coalition government reversed its however, border checks continued to focus position under pressure from the right-wing on irregular or secondary migration. nationalist Swedish Democrats. In July, The gap between applicable EU law and identity checks were extended to all major political debates in the Schengen member international airports and ports. As the states concerned has grown further since elections on 9 September resulted in pro- then. The Berlin Coalition Agreement of tracted negotiations on forming a new March 2018, for instance, states that inter- coalition, Sweden’s final position on the nal border controls are justifiable until the matter is unclear for now. However, any EU’s external borders provide effective pro- new government is likely to continue this tection. Accordingly, Germany has already policy for the time being. prolonged its border checks twice for six In any case, the current Austrian EU months until May 2019. Yet the wording in Presidency has been prioritising external the German coalition agreement and the borders instead of abolishing internal con- parallel maintenance of controls by all six trols. Already in June 2018, the FPÖ-led states concerned is increasingly at odds Ministry of the Interior organised an exer- with the Schengen regulation, which de- cise for the emergency closure of all border fines internal border controls as a tempo- crossings to Slovenia – even including rary measure of last resort. Meanwhile, the military forces. Italian Minister of the Inte- bitter domestic confrontation in summer rior, Matteo Salvini, meanwhile, uses on- 2018 over push-backs of previously regis- going French controls at the border near tered asylum seekers at the German- Ventimiglia to legitimate his own contro- Austrian border focused almost exclusively versial migration policies. France must first

SWP Comment 44 October 2018

3 end these measures before he would even under discussion in the European Parlia- consider European requests to open Italian ment. The aim is to clarify and tighten the ports to refugee ships again. Irrespective of applicable rules on temporary border con- Salvini’s argument, it must be remembered trols. The current practice of repeatedly that the compromise reached in 2013 on extending border checks for six months is the design of longer-term internal border to be prohibited. Exceptional measures to controls under Article 29 was intended to safeguard national security (Article 25) defuse tensions between France and Italy. should not exceed a period of one year and The fact that this legal basis is not respected should not be combined with other legal any more – or side-stepped through the bases in the Schengen regulation. The exist- consecutive use of Article 25 – aggravates ing internal borders controls would have to the political crisis. be lifted immediately once this regulation Many other Schengen member states were adopted. Furthermore, the documen- and the European Parliament are also in- tation for justifying temporary border con- creasingly critical. They say it is difficult to trols should be significantly expanded. For understand why internal border controls short periods, the decision would be left should be a necessary and effective measure to each Schengen member state. But when to maintain the national security of the six lasting into several months, comprehensive states concerned. There is little proof of information about the necessity and the their effectiveness, especially in Germany effectiveness of temporary border controls where the two permanent control points to would have to be provided, on which directly Austria are relatively easy to circumvent. affected neighbouring countries could com- But even limited border checks cause traffic ment. This amended procedure for Article disruptions that have a significant impact 25 would approximate the common Coun- on transnational supply chains, commuter cil decision on temporary border controls traffic and tourism. with respect to systemic risks to the Schen- In addition, Eastern and South-Eastern gen zone, as already foreseen in the Article European member states ascribe a special 29 procedure. historical and political value to principle Yet current political debates in the con- of freedom of movement. The position of trolling states appear irreconcilable with several Western European states in denying such a tightening of the Schengen regula- Romania and Bulgaria full membership of tion. Adopting this reform by qualified the Schengen area for as long as possible, majority in the EU’s Council of Ministers reinforces the perception of a two-tier sys- might, therefore, lead to bitter clashes. As tem in this region of the EU. On the one a last resort, outvoted member states might hand, Eastern European countries are closely try and invoke their primary-law compe- monitored in terms of compliance with tence on issues of public order and national Schengen law and are also strongly criti- security under Article 4(2) of the EU Treaty cised for their refugee policies. On the other to reject a new secondary-law obligation to hand, the EU Commission is bowing to lift internal border controls. Retreating to pressure from Western and Northern Euro- such a position would pose serious risks pean states not to formally challenge the to the EU’s migration policy or entire legal erosion of legal procedures and time limits order. If powerful states such as Germany for internal border controls. and France were to argue openly for the primacy of national security over existing EU law, it will become impossible to main- Amending the Schengen regulation tain effective pressure on Poland and Hun- gary. The latter already justify their grow- In June 2018, the outgoing Bulgarian EU ing disregard for the Rule of Law and Presidency presented a reform proposal for the EU acquis by referring to an overriding the Schengen regulation which is currently need to protect their population and

SWP Comment 44 October 2018

4 national identity. The Italian government September 2011, the issue seemed to have would also be encouraged to pursue ever resolved itself. In the current situation, more unilateral policies. Even though however, a further restriction of national Italy’s interests in the field of migration freedom to decide on border controls could appear to clash with Hungary’s position, persuade Denmark to opt out of an amended there is already a nascent alliance in the Schengen regulation. run-up to the 2019 European elections The practical consequences of such a in order to renationalise competences. development are, as yet, unknown. In the A further weakening of the Schengen worst case, Denmark would lose full free- regime would also risk losing Spain as a dom of movement in the Schengen zone partner for European approaches to the and access to the Schengen Information migration crisis. Spain has an essential System. This would not only have serious interest in the freedom of movement be- consequences for Danish security interests, cause of its tourism and export industries. outweighing any security benefits gained In the summer of 2018, Madrid already from border controls, but could also fuel criticised increased French controls on their the ongoing fragmentation of the EU and land border. Overall, the EU and its mem- separate Northern Europe from Central ber states risk a negative loop between Europe. Last but not least, such a step the reform of the Dublin regulation – or would have drastic consequences for inner- related voluntary initiatives among a sub- Nordic relations which have been based on set of member states, which could provide the principle of open borders for decades. for the distribution of refugees and curb The Nordic Passport Union, founded in secondary migration – and the erosion 1954, guaranteed the citizens of all partici- of the Schengen regulation. pating states the right to cross borders with- out controls and even without a passport. In order to maintain the inner-Nordic free Risks of a one-sided reform movement of persons following the acces- sion of Denmark, Finland and Sweden to the Ironically, a dogmatic solution in which all Schengen system in 2001, non-EU members internal border controls were lifted quickly Norway and Iceland also took this step. How- and fully could also trigger the breakup of ever, the Schengen Agreement was never ap- the Schengen zone. In Denmark, for exam- preciated in the North. Above all, the open- ple, Schengen law only applies on a volun- ing of EU internal borders towards Central tary basis under international law. This is Europe was associated with fears of growing one of the effects of Denmark’s special immigration, crime and smuggling. status in the EU’s Justice and Home Affairs Danish Prime Minister, Lars Løkke Ras- policy. In a referendum in December 2015, mussen, proposed a Nordic ‘mini-Schengen’ the Danish people rejected gradually phas- in early 2016. The consequence would ing out this opt-out. As a first consequence be joint passport checks at the external in 2016, Denmark’s full membership of borders of Nordic countries to stop illegal Europol was downgraded to observer status. immigration and to reinstate freedom of In the past, Denmark has voluntarily movement between the Nordic countries. adopted all amendments to Schengen legis- This would constitute a de facto return lation. This can no longer be expected in to the Nordic Passport Union in contrast to the future. As early as 2011, the right-wing the existing Schengen membership. Al- nationalist Danish People’s Party initiated though the Swedish government signalled plans to reintroduce passport controls at its general agreement to deepen security the border with Germany. At that time, the cooperation with Denmark, its response to project met with sharp criticism from Brus- the idea of joint controls was rather more sels and Berlin. When a different centre-left reserved. At a meeting on 1 June 2018, the coalition government came to power in Ministers of Interior and Justice of the five

SWP Comment 44 October 2018

5 Nordic countries only agreed to step up cross- restore confidence among all the Schengen border operational police cooperation, in- member states. To return to a common cluding joint patrols in border regions, but understanding of the applicable Schengen with a primary focus on combating crime. In rules would also help clear the way to decide this respect, it is currently unclear whether on the upcoming Schengen accession of greater Nordic cooperation will serve as re- Romania, Bulgaria and Croatia. It should be gional support for the overarching Schen- noted that Romania will hold the EU Presi- gen regime, whether it could gain impor- dency in 2019 and Croatia in 2020. The tance as a standalone alternative, or whether costs of current border controls for regional Nordic cooperation itself would break apart. economies and smaller countries like Slo- venia should not be underestimated either. It would be particularly damaging if pro- The strategic value of Schengen posals to reform Schengen and the Dublin regulation, which is still to be finalised The Schengen regime has overcome several before the 2019 European elections, would crises in the past three decades and devel- come to block each other. The North-West- oped numerous security mechanisms to ern member states of the EU have a legiti- compensate for the free movement of per- mate interest in curbing secondary migra- sons. This can be seen, for example, in the tory flows and transferring irregular immi- enhanced functionalities of the Schengen grants to first-arrival states in accordance Information System and its increasingly with the Dublin regulation. However, sta- obligatory use to combat serious crime and tionary border controls are only of limited terrorism as well as to enforce entry ban use, especially for countries with long land decisions. The Schengen regime is also a borders. Reforming the Dublin regime or prime example of flexible integration as it at least a more stringent implementation accepts non-EU members as well as special of the existing regulation is clearly more rules for individual members, as for in- helpful in this regard. But Italy, and poten- stance in the case of Ireland. Even if the tially Spain, see open internal borders as a free movement of persons were to be par- prerequisite for cooperation. tially curtailed, this would not necessarily Yet, even if the proposed Schengen plunge the EU into an existential crisis. The reform could be adopted in the near future, political rhetoric that the EU would fail if all member states should be prepared for a Schengen failed was only plausible at the growing opt-out by Denmark. As its domes- height of the refugee crisis. tic political discourse is currently influenced Nevertheless, the six states currently car- by right-wing nationalism, one can expect rying out border checks should abandon that maintaining national border controls their one-sided concern with secondary mi- will be considered more important than gration and carefully weigh up the long-term aligning itself to an amended Schengen regu- consequences of their actions. There is little lation that reduces their leeway to take action time left to strike a compromise between at the national level. In Sweden, too, once the proponents of open internal borders a government has been formed it will need and advocates for security. The concerned to decide what direction it wants to take states already declared their intension to on border control and internal security – a prolong their border checks for another six nationalistic, Nordic or more EU-focussed months after mid-November, whereas Com- one. These scenarios show the importance mission president Juncker clearly stated in of a forward-looking and strategic approach his last major speech from September that to the smouldering Schengen crisis. If deci- this practice should come to an end. sion-makers continue to stumble along for The existing reform proposal to amend six months at a time, previously unthinkable Schengen regulations by defining clear developments of regional compartment- deadlines and justifications would help alisation, such as those expressed in the

SWP Comment 44 October 2018

6 idea of a Nordic or Western European mini- trols that can only be carried out selectively. Schengen may eventually become reality. From a European perspective, the pro- posed boost to the competences, resources and manpower of Frontex and the expan- Compensatory measures for the sion of EU databases for migration and bor- free movement of persons der control, which is already under way, should be seen as additional weighty rea- The political efforts of all six controlling sons to justify lifting temporary internal Schengen members should, therefore, focus border controls. Conversely, the strong in- on highlighting the overarching value and terests of Italy and Eastern European states manageable risks of open internal borders to retain open internal borders are to be © Stiftung Wissenschaft while, at the same time, investing in com- used to counter their objections to the pro- und Politik, 2018 pensatory security measures. In particular, posed 10,000-strong EU border guard with All rights reserved this means significantly expanding police increased executive powers. However, deci- This Comment reflects checks in areas close to the border or “drag- sion-makers must also clearly communicate the authors’ views. net controls”, as practiced in Germany and that this further strengthening of the EU’s Switzerland. This approach was expressly external border security will take several The online version of recommended by the European Commis- years and will never put a complete end to this publication contains sion in March 2016, provided that such irregular migration. Therefore, this long- functioning links to other police checks are not systematic but based term objective and structural challenge to SWP texts and other relevant sources. on reasonable suspicion. However, ensuring manage migration should not serve as a the police comply with the principle of non- pretext for ignoring the current time limits SWP Comments are subject discrimination is not easily guaranteed in for internal border controls. to internal peer review, fact- practice. This issue was brought before the Restoring the full freedom of movement checking and copy-editing. European Court of Justice in 2010 and has and mutual trust inside the Schengen zone For further information on our quality control pro- since been raised in several national cases. can also be justified from an operational cedures, please visit the SWP It is partly for this reason that the Danish perspective, given the relatively low num- website: https://www.swp- and Swedish governments have rejected bers of irregular migrants currently arriving berlin.org/en/about-swp/ intensifying police border checks so far, in the EU. If it were not possible to return quality-management-for- suggesting they are inadequate or incom- to commonly recognised Schengen law swp-publications/ patible with national legislation. Norway, under these conditions, the only way for- SWP on the other hand, has followed the Com- ward in the event of a renewed mass influx Stiftung Wissenschaft und mission’s recommendation and its police would be unilateral and uncoordinated Politik are carrying out more checks on individuals national border controls. So instead of diffi- German Institute for in the southern border hinterland. cult but by no means hopeless negotiations International and Such differences should be overcome by to find a compromise between the impera- Security Affairs further developing and harmonising national tive of free movement of persons and the Ludwigkirchplatz 3–4 police legislation and operational practices need for migration control, one would see 10719 Berlin for curbing secondary migration, including a complete dissolution of the common Telephone +49 30 880 07-0 cooperation with asylum authorities. Tech- Schengen regime. Germany especially, as Fax +49 30 880 07-100 nical systems to automatically register num- the country with the most internal Euro- www.swp-berlin.org ber plates could make an additional contri- pean borders, should focus its political [email protected] bution to border security without stationary efforts now to avoid such an extremely ISSN 1861-1761 controls. National politicians need to pro- damaging and costly scenario in the future. actively highlight the operational value of Translation by Martin Haynes such compensatory security measures, espe- cially compared to stationary border con- (English version of SWP-Aktuell 53/2018)

Dr. Raphael Bossong and Dr. Tobias Etzold are Associates in the EU / Europe Research Division. This publication was produced as part of the Research Centre Norden (RENOR) which receives funding from the Nordic Council of Ministers. The opinions expressed in this text are those of the authors only.

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