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EU border security in a time of pandemic: restoring the Schengen regime in the face of old conflicts and new requirements for public health Bossong, Raphael

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Empfohlene Zitierung / Suggested Citation: Bossong, R. (2020). EU border security in a time of pandemic: restoring the Schengen regime in the face of old conflicts and new requirements for public health. (SWP Comment, 28/2020). Berlin: Stiftung Wissenschaft und Politik - SWP- Deutsches Institut für Internationale Politik und Sicherheit. https://doi.org/10.18449/2020C28

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NO. 28 JUNE 2020 Introduction

EU Border Security in a Time of Pandemic Restoring the Schengen Regime in the Face of Old Conflicts and New Requirements for Public Health Raphael Bossong

The massive mobility restrictions in the Schengen zone that were imposed to control the Corona pandemic are to be lifted from mid-June onwards. If a second wave of infections does not follow suit, the German EU Council Presidency may oversee the end of all remaining internal border controls. The reform of the Schengen regulation, which has been overdue since the migration crisis, can be relaunched. The link between secure external borders and internal freedom of movement should have already been reappraised. Looking forward, targeted checks on persons for reasons of public health must be better coordinated. The forthcoming EU pact on migration and asylum will be even more difficult to agree on, however. Access to asylum procedures must be guaranteed without fail, despite national responsibility for public health.

In February 2020, when Italy imposed the national decisions led to serious economic first mobility restrictions due to the Covid- and social disruptions, particularly with 19 pandemic, the EU Commission rejected regard to the cross-border supply of medical the introduction of internal border controls goods and the role of foreign workers and in the Schengen zone. This was in line with commuters. It was initially not clear how the then insufficient risk assessments of severe the restrictions on the free move- the Covid outbreak among other EU and ment of persons and goods would have to Schengen member states. The World Health be or how long they would last, nor whether Organization (WHO) also recommended the European internal market would be keeping international borders open. able to cope. However, when the rapid spread of the Some economic costs and intergovern- virus throughout Europe – fuelled by mental coordination problems could be ski tourism – became apparent, and the curbed or defused rather quickly. For exam- overloading of the Italian health system ple, the European Council agreed in mid- reached dramatic proportions in March, March on a general ban on entry at Europe’s 15 EU states and the additional Schengen external borders in order to avoid secondary members Norway, Iceland, Lichtenstein, movements within the Schengen zone. and Switzerland announced measures Shortly thereafter, so-called green lanes for to close their borders. These unilateral maintaining the smoothest possible cross-

border movement of goods were installed at of a decentralised organisational structure the suggestion of the Commission. Member in these matter are already apparent in states were initially reprimanded by the Com- Germany. While the regionally varied ap- mission and heeded its subsequent instruc- proaches to contact restrictions are being tion to not impose any intra-European criticised, local mobilisation and the related export restrictions or to competitively buy considerations of individual circumstances up scarce medical goods. have proven to be great advantages in con- Member states furthermore agreed to taining the virus. allow the cross-border movement of workers Similarly, the objection that border con- in critical sectors and to allow all EU citi- trols are not an effective tool for combating zens to travel home, even if they had to pandemics cannot itself justify a common cross other member states with closed bor- policy in the EU. When faced with direct ders by land. Finally, a coordinated global human-to-human transmission and the lack repatriation programme for almost 600,000 of a vaccine, it is difficult to convey to the European citizens was completed in mid- public that massive restrictions on local April. Ten per cent of the costs involved freedom of movement have to be accepted, were financed directly through the EU Civil while at the same time cross-border mobil- Protection Mechanism. ity is hardly impacted. The nation-state is The widely shared impression that the still the primary frame of reference for EU totally failed in the first phase of the citizens to voice their demands for protec- Covid crisis, therefore, does not quite hit tion – or in which they negotiate the risks the mark. Member states did not funda- that are to be borne by society as a whole mentally turn away from the right to free or by the individual. Without ignoring the movement and tried to limit the damage reality of our global risk society, which has through sustained European dialogue. been highlighted once again by the Covid Nevertheless, the EU and Schengen member pandemic, the risk management of inter- states still present a very mixed picture when national organisations, including the EU, it comes to permissible domestic and inter- must be based primarily on national and national mobility. Under these conditions, local structures. The tracing of infection the Schengen zone and the internal market chains, for example, functions much less remain under threat. The fragmentation of efficiently in cross-border contexts. the flow of people and goods could become Although European law spells out strict entrenched. conditions for border controls, only EU- wide recommendations can currently be justified in the sensitive area of public Reasons for Persistent health. The political responsibility and Divergences democratic legitimacy for limiting funda- mental rights in the name of protecting The remaining differences in national human lives remain at the national or restrictions are evidently not only due to regional level, as do the risks associated the geographical concentration of Covid with relaxation. Strong pro-European infections, but also divergent political appeals are of no help in view of the high assessments. For example, it has not been levels of uncertainty. finally settled whether Sweden failed with its alternative strategy of openness or how restrictive the national lockdowns had to A Summer of Opening be. In any case, the EU does not have the legal competence in the area of public This explained the cautious tone of the health – in contrast to the agricultural sec- Commission communications from mid- tor – to issue orders for uniform disease May to support a gradual reopening of control. The advantages and disadvantages borders between member states. The re-

SWP Comment 28 June 2020

2 gional epidemic patterns and the capacities France had, as an exception, originally of the national health care systems with planned to maintain comprehensive Covid- regard to the detection of infection paths, related controls until October, but now it the registration of infection rates (e.g. via wants to join the openings from mid-June. Covid tests), and the management of the Spain (late June) and Norway (until mid- progression of severe diseases (number of August) should follow suit with a slight available intensive care beds, etc.) should delay. be the decisive factors considered for lifting Against this background, the EU Council border controls. These parameters should of Ministers decided on 5 June to extend be collected and evaluated in all EU coun- the general entry ban at the EU’s external tries with the support of the European borders only until early July. The Commis- Centre for Disease Prevention and Control sion has since then invited the member (ECDC). Various measures for occupational states to draw up and regularly update a safety and contact minimisation should common list of third countries – based underpin a restoration of the freedom of on an agreed checklist of criteria – from movement. which travel to the EU and the Schengen The European added value of these rec- zone could be allowed. According to the ommendations, however, is questionable if Commission, at least the Western Balkans no clearer benchmark can be clearly agreed should be exempted from the entry ban for upon (similar to the German compromise non-essential travel as soon as possible. on the upper limit of 50 new infections per In the event of a sustained containment 100,000 inhabitants, above which mobility of infection rates, the Schengen zone should restrictions should be brought back). thus be largely open again by the middle Nevertheless, there is a clear tendency of summer. This step should be combined to safeguard the economic interests of with the abolition of the general quaran- member states and revitalise tourism this tine requirement after entry, not least summer. The remaining political tensions because the tourism industry would other- over the divergent national approaches to wise be decimated. However, national relaxing the current restriction should be authorities reserve the right to carry out overcome in the coming weeks. targeted health checks on any persons after Driven by debates between its regions, entering the country. Italy has already opened borders with other The EU Commission ensures the prin- EU member states as of 3 June. Yet, neigh- ciple of non-discrimination with respect to bouring countries did not immediately join all national decisions to lift mobility restric- in, even though Germany, Austria, and tions. Preferential treatment between states Switzerland already agreed on facilitating that are close to each other – as was dis- their respective cross-border traffic in May. cussed among the Baltic states in May – Similarly, the Scandinavian states decided should be avoided. Yet, the warning of Com- to lift their mutual controls, excluding mission Vice-President Margaritis Schinas borders with Sweden. against the formation of new “mini-states” Germany, though, declared that it would has not come to pass. lift its nation-wide travel warning from mid- From autumn onwards, further reforms June and allow entry from all other EU and of the Schengen regime may come into Schengen states – i.e. also without “good” view under these circumstance. If the pan- reason, as is currently the rule. Almost all demic does indeed subside, national room other EU and Schengen member states have for manoeuvre should again take a back adopted similar outlooks. As a rule, they seat to the common EU legal framework. had announced internal border controls for three months until the end of May, and since then they have only continued these controls for short periods of time, if at all.

SWP Comment 28 June 2020

3 Old Conflicts in the Schengen Zone case of health risks, which are difficult to predict, it seems questionable to set fixed However, political reservations about open deadlines for mobility restrictions. The na- borders represent an unresolved problem tional responsibility for public order, which (see SWP Comment 44/2018). Norway, also includes protection against serious Sweden, Denmark, France, Germany, and health risks, cannot be limited in time. Austria have been carrying out controls at However, the emergency-related deviation sections of their internal borders since the from the regular Schengen regime should end of 2015. On a practical level, these be as short and targeted as possible. security measures have become less and In this respect, it is unreasonable to less perceptible. Germany, for example, maintain national exemptions for internal generally monitors only two border cross- border controls for several years if there is ings with Austria. However, this does not no concrete and exceptional threat over affect the legal debate on these measures. that period. It is true that the six control- In regular statements to the EU Commis- ling states are confronted with a continu- sion, the six states insist that weaknesses ous so-called secondary migration of asy- in the EU’s external border protection and lum applicants from countries of first terrorist threats justify such internal border arrival, which may justify institutional and controls. As things stand at present, these legal reforms of the Schengen zone. How- controls are to be continued until at least ever, the irregular immigration that is still November 2020. taking place at present clearly poses no Articles 25 to 28 of the Schengen regu- threat to public order in these countries. lation state that the member states may In view of the harsh pushback of persons restrict cross-border traffic for up to six who have attempted to cross the Turkish- months due to special security require- Greek land border irregularly from Feb- ments, as is currently the case in the Covid ruary onwards, or the continually tightened crisis. Semi-annual “chain extensions” of restrictions on sea rescue operations in the such controls are not explicitly prohibited, Mediterranean, the lifting of internal bor- but they are clearly not provided for. This der controls cannot plausibly be made de- can be derived from the provision (Art. 29), pendent on ever more stringent EU external introduced only in 2013, that internal border controls. border controls are permitted for up to two years if the EU Council of Ministers deter- mines that the entire Schengen zone is Asylum and Irregular Migration systematically endangered. This mechanism was exhausted at the end of 2017. Since The Covid crisis could thus provide a win- then, irregular immigration and the threat dow of opportunity and a chance to shift of international terrorism have declined the political positions of the member states significantly, so that the deadline for lifting on asylum and irregular migration. While internal border controls can also be justi- the EU states were primarily concerned fied on substantive grounds. with restricting irregular immigration from During the last legislative period, a 2015 onwards, the value of open borders reform of the Schengen regulation, which is now coming back to the fore. The crisis was intended to define clear time limits and has also highlighted the economic con- tighten the proportionality check on inter- tributions of foreign workers, including nal border controls, failed. At the end of irregular migrants. Italy, for example, 2019, the new EU Parliament set up a spe- adopted a decree that opens up work per- cial committee on Schengen to keep these mit channels for illegally employed third- issues on the agenda. country nationals. The experience of the Covid crisis could Overall, however, there is a risk that the steer the debate in a new direction. In the situation of persons seeking protection will

SWP Comment 28 June 2020

4 worsen further. International as well as one-time EU decisions of 2015 on the dis- non-governmental organisations warn that tribution of persons seeking protection. the Covid crisis should not lead to a denial Therefore, the key issue is how member of the fundamental right to asylum. The states assess their recent experiences with appeal is primarily, but by no means ex- unilateral security measures and border clusively, directed at the countries of first closures. The past few years have provided arrival in southern Europe. For example, ample evidence for the negative impact of Italy and Malta declared in March that their “beggar-thy-neighbour” policies, i.e. the ports could no longer be considered safe consequences of efforts to shift the costs or due to the Covid pandemic, and that it supposed burdens of irregular immigration would therefore not be appropriate to dis- onto other states without contributing to- embark asylum seekers. wards overcoming the problem as a whole. The notion that people who were rescued For example, a few dozen or hundreds of in the international waters of the Mediter- persons apprehended by NGOs or other ranean should instead be returned directly ships at sea led repeatedly to paralysing to Libya can currently be justified even less haggling between the member states. so than in previous years. At the end of The Covid crisis has put a halt to migra- May, militias are said to have shot 30 in- tory movements of all kinds around the mates of a camp with irregular migrants. world. Yet, in just a few months, a signifi- Military violence in Libya has been esca- cant increase in irregular immigration can lating for months (see SWP Comment 25/ be expected again due to various socio- 2020), all while there is virtually no medi- economic distortions and possible new con- cal capacity available to control the Covid flict dynamics. Even before the Covid out- pandemic. break, the situation of refugees in Turkey The EU Commission itself is involved in (see SWP Comments 22/2020) and Lebanon many measures that shift migration control was very precarious. The domestic crises in into the European neighbourhood. As these host countries have since worsened recently as the beginning of March, Ursula massively. The need for a common, resilient von der Leyen praised Greece’s tough action approach to irregular immigration and a of sealing off its land border with Turkey. common guarantee of asylum for those in However, in view of the continuing border need of protection is therefore more urgent closures due to the Covid crisis, the Com- than ever. However, this realisation and the mission has partially corrected its position numerous appeals for more European soli- since then. It is now taking a more pro- darity during the Covid crisis are probably active stance to uphold the right to asylum not enough. enshrined in the EU Charter of Fundamen- The EU Commission wanted to present a tal Rights. The Commission maintains that new pact for asylum and migration at the only procedural restrictions and delays in beginning of April in order to overcome the the application process are justifiable. political blockade that had lasted for years, If key provisions of the Common Euro- and to achieve a more crisis-proof, resilient pean Asylum System are not respected, European system of burden-sharing. This even after the first phase of the Covid crisis did not happen because of the Covid out- has subsided, new infringement procedures break. The presentation is now expected in could be envisaged. Though, experience parallel with the lifting of internal border has shown that the necessary time span for controls in June. complete infringement proceedings does A central element of this pact is to be the not suffice for the practical challenges at development of border procedures in “con- hand. This April, for example, the European trolled” or closed facilities. There, a rapid Court of Justice came to a final judgement preliminary assessment of asylum applica- on the matter, according to which all mem- tions is to take place in order to then ini- ber states should have implemented the tiate either direct repatriation or distribu-

SWP Comment 28 June 2020

5 tion to other EU member states, where a pendently from the politically salient discus- complete asylum procedure would then be sion on the European asylum and migration carried out. The catastrophic conditions on pact. In its current version, the Schengen the Greek islands make it clear that new regulation mentions dangers to public health first arrival camps must be planned with only in the margins. For example, the entry the utmost care and must also guarantee of third-country nationals may be prohibited health protections. for reasons of public health protection It is not only because of such require- (Article 6 (1)). Non-EU citizens may also be ments that the new pact on migration and subject to systematic checks for this pur- asylum will remain highly controversial. pose (Article 8 (3)). EU citizens and third- Those states that have so far been funda- country nationals with long-term residence mentally opposed to an obligatory distribu- status can also be subject to checks at the tion of asylum seekers will hardly have to EU’s external borders on a non-systematic show any willingness to compromise. In- basis, also with a view to protecting public stead, the current crisis strengthens their health (Article 8 (2)). However, this must tactical negotiating position. The threat that not lead to a refusal to return home. states which do not wish to participate in The “Free Movement Directive” (2004/38/ EU asylum policy could lose full access to EC), which also applies to EU citizens of the benefits of the Schengen zone has not countries that are not full members of the materialised in recent years. The eastern Schengen zone, contains some additional European states have an important role to information (Articles 27 & 29): Accordingly, play in the reconstruction following the health checks can be carried out up to Covid crisis, as they must approve all pan- three months after entry if there is justi- European financial packages and have fied suspicion of a threat to public health. come through the past months with com- Comprehensive border closures and police paratively little economic damage. Espe- measures are not covered by this provision. cially for Germany, further distortions of Rather, it forms the basis for a targeted cross-border supply and production chains regime of contact tracing by public health do not seem to be bearable. It is therefore authorities. hardly conceivable that the restoration of Newer EU actors such as the ECDC are freedom of movement and openness in the not yet mentioned in the 2004 Free Move- Schengen Area can be made dependent on ment Directive. The ECDC has so far had solidarity in asylum matters. rather limited resources, and its work In the foreseeable future, other EU states depends on information provided by mem- and the European Parliament must there- ber states. However, the ECDC’s work – the fore allow for a very flexible participation compilation of an overview of the European in burden-sharing in the European asylum infection status and the standardisation of system. This makes it all the more impor- disparate national data – could be better tant to uphold generally binding principles supported and utilised, in cooperation with and standards of asylum law and to actually the WHO regional office. end crisis-related exceptions. This applies in The primary competence of the member particular to offering the chance to submit states would not be curtailed if the inter- an application for protection at the EU’s actions between intra-European checks on external borders. persons and public health protections were to be defined more precisely. So far, only non-binding and mostly critical assessments Border Controls and of the ECDC have been available on the Health Protection question of whether instruments such as health questionnaires, fever measurements, A new reform of the Schengen regime could or “immunity passports” should be used be launched from autumn onwards, inde- sensibly when entering the EU. National

SWP Comment 28 June 2020

6 decisions for or against such instruments the health situation in third countries can will determine how citizens and third-coun- be disregarded. try nationals will soon experience cross- Whether international travel can be border travel in the Schengen zone. resumed will ultimately depend on the It must be clarified whether reliable prospect of a vaccine being available and testing for Covid infections can be carried swiftly distributed globally over the next out and what capacities are available to the two years. Even though WHO is critical of Schengen states for health checks at their border controls to combat the pandemic, it external borders. So far, the Commission is now likely that technical measures such has only issued a recommendation on how as fever measurements at airports will the member states should resume visa pro- become established. The United States, for cessing, once the general entry ban for non- example, is currently planning procedures essential travel to the EU starts to gradually with private operators. The EU has not yet be lifted. This mainly revolves around the formulated a clear position on this point. increasing technical challenges to ensure Since the EU has served, after China, as the public health during the application pro- second major platform for the global spread cess, whereas the decision cannot be made of the Covid virus, further possibilities of dependent on individual health checks due exit controls could be considered to make to the time gap between the granting of it easier for third countries to reopen their (often longer-term or multiple) visas and borders. actual travel. There have been some inter- nal discussions whether the coming system for an electronic entry permit (European Outlook and Recommendations Travel Information and Authorization System, ETIAS) for travellers who are ex- The forthcoming end of the EU entry ban empt from visa requirements might also be will be accompanied by wide-ranging re- used more extensively for the purposes of laxations within the entire Schengen zone. public health protection. ETIAS would, in National public health powers and a sus- the future, apply to all citizens of North tainable containment of Covid infections and South America, where the Covid pan- will take precedence over the restoration demic is currently raging. Yet, it now seems of full freedom of movement within the EU. certain that the launch of ETIAS will be sub- However, if only local outbreaks are to be stantially delayed from 2021 to late 2022. dealt with from this summer onwards, the The EU border agency, Frontex, will have German Presidency will provide to be a to gear its work and risk assessment more window of opportunity for removing all closely to public health criteria, however. remaining mobility restrictions. This phase- At the end of 2019, a further, far-reaching out should explicitly extend to those inter- reform of the agency was decided upon – nal border controls that have been main- the implementation of which will entail tained by six states, including Germany, many challenges (see SWP Comment since the migration crisis of 2015. 47/2019). Initial approaches to integrating This would send a political signal about health care for people seeking protection the value and crisis-proof nature of the into regional contingency plans have not Schengen zone. In addition, this step would been substantially developed since 2017. support the Conference on the Future of The current situations demands a reprioriti- Europe, which is now due to start in Sep- sation, especially when Frontex begins tember. EU citizens value freedom of move- increasingly carrying out repatriations ment as a particularly important achieve- under its own responsibility, as foreseen in ment, especially now after the restrictions the new regulation. The lifting of the they have experienced. general EU entry ban does not mean that However, the conflicts of principle in EU migration and asylum policy, which are

SWP Comment 28 June 2020

7 closely linked to border security and free- dom of movement in terms of both content and politics, will not be defused in the coming months. The central issue of how asylum seekers are to be distributed within the EU can probably only be circumvented through voluntary coalitions. Reception centres and preliminary assessments near the border will be even more difficult to implement with a view to the new require- © Stiftung Wissenschaft ments for health protection. Before new und Politik, 2020 approaches for a more crisis-resistant Euro- All rights reserved pean asylum system are pursued, it is im- perative that the remaining access possi- This Comment reflects bilities for persons seeking protection be the author’s views. maintained. This applies to all EU and The online version of Schengen states. this publication contains The reform of the Schengen Borders functioning links to other Code should be relaunched in autumn. SWP texts and other relevant Beyond fixed time limits, coordination sources. between the Schengen states must be im- SWP Comments are subject proved. For example, the EU mechanism to internal peer review, fact- for “integrated political crisis management” checking and copy-editing. based on the solidarity clause (Art. 222 TFEU) For further information on could be used more systematically. In par- our quality control pro- ticular, the proportionality of prolonged cedures, please visit the SWP website: https://www.swp- internal border controls should be more berlin.org/en/about-swp/ closely reviewed. The dialogue between the quality-management-for- EU Commission and neighbouring states swp-publications/ affected by national measures can be struc- tured more efficiently and made more SWP binding. Stiftung Wissenschaft und Politik Finally, member states must agree on German Institute for the procedures or tools to be used for health- International and related checks on persons. The ECDC could Security Affairs play a greater role and be taken into account in provisions of the EU’s Free Movement Ludwigkirchplatz 3–4 10719 Berlin Directive. Frontex must also expand its Telephone +49 30 880 07-0 remit to protect the health of refugees and Fax +49 30 880 07-100 its own staff. www.swp-berlin.org The Covid crisis could thus be used to [email protected] strengthen the common legal framework and the European value of the free move- ISSN 1861-1761 doi: 10.18449/2020C28 ment of Union citizens.

(Updated English version of SWP-Aktuell 45/2020)

Dr Raphael Bossong is an Associate in the EU / Europe Division.

SWP Comment 28 June 2020

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